Criminal Law 2 Cases Batch 2

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-11870

October 16, 1961

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENITO CRUZ, ET AL., defendants. FERMIN TOLENTINO, BENITO CRUZ and PATERNO CRUZ, defendantsappellants. Cipriano Manansala and Jose Lao for defendants-appellants. Office of the Solicitor General for plaintiff-appellee. CONCEPCION, J.: Appeal from a decision of the Court of First Instance of Rizal convicting appellants Paterno Cruz and Benito Cruz of "rebellion with robbery with homicide," and appellant Fermin Tolentino of "rebellion with arson, with murder and robbery." The case is before us, the penalty imposed upon appellants being life imprisonment. On or about November 23, 1953, the Provincial Fiscal of Rizal filed with the Court of First Instance of said province an information accusing said appellants, together with Elpidio Gantan (alias Marco Polo, alias Acosta, aliasMaralva), Domingo de la Torre (alias Meding, alias Espiritu), Espiridion Salcedo (alias Lafredo), and Amado Sanchez Cruz (alias Enriquez) of the "complex crime of rebellion, with multiple murder, robberies and arsons," allegedly committed as follows: That on or about May 28, 1946, and for sometime prior and subsequent thereto and continuously up to the present time, in the province of Rizal, Philippines, and within the jurisdiction of this Honorable Court and in other municipalities, cities and provinces and other parts of the country where they have chosen to carry out their rebellious activities, the said accused, being then ranking officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines and the "Hukbong

Mapagpalaya Ng Bayan (HMB)" otherwise known as the Hukbalahap (HUK), the latter being the armed force of said Communist Party, having come to an agreement and having decided to commit the crime of rebellion, and, thereby conspiring and confederating among themselves together with all of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270, 14315 and 14344 (Politburo Cases) in the Court of First Instance of Manila, with other members, officers and/or affiliates of the Communist Party of the Philippines and the "Hukbong Mapagpalaya Ng Bayan (HMB)" or HUKS and many others whose identities and whereabouts are still unknown, acting in accordance with their conspiracy and in the furtherance thereof, and mutually helping one another, did then and there willfully, unlawfully and feloniously help, support, promote, direct and/or command the "Hukbong Mapagpalaya Ng Bayan (HMB)" or the Hukbalahap (HUK) to rise publicly and take up arms against the Government of the Republic of the Philippines, or otherwise participate in such public uprising for the purpose of removing from the allegiance to the said government and laws thereof, the territory of the Philippines or portion thereof, as in fact the said "Hukbong Mapagpalaya Ng Bayan (HMB)" or the HUKS, pursuant to such conspiracy, have risen publicly and taken up arms against the Government of the Republic of the Philippines to attain said purpose by then and there making armed raids, sorties, ambushes and attacks against the Philippine Constabulary, the Civilian Guards, the Police and Army patrols and other detachments constituted and organized by the government of the Philippines, as well as upon ordinary civilians, and as a necessary means to commit the crime of Rebellion in connection therewith and in the furtherance thereof, have the and there committed wanton acts of murders, pillages, lootings, plunders, arsons and planned destructions of private and public properties to create and spread disorders, terrors, confusions, chaos and fear among the population and by the use of force and intimidation, organized different barrio organizations to secure supplies and materials for the support and maintenance of said uprisings, to wit: I That on or about March 20, 1951, at about 8:30 o'clock in the evening, in the municipality of Antipolo, province of Rizal, the herein accused BENITO CRUZ, leading some armed members of the "Hukbong Mapagpalaya Ng Bayan", including the accused herein

PATERNO CRUZ, with intent of gain and for the purpose of procuring supplies for their organization, entered the residence of JOHN D. HARDIE, and with violence and intimidation upon the said JOHN D. HARDIE, took and carried away therefrom personal properties of material values consisting of a typewriter, a radio, several pieces of jewelry, books, clothings and other articles belonging to the latter amounting to Five Thousand Pesos (P5,000.00), more or less, and that before leaving the premises, the said BENITO CRUZ and PATERNO CRUZ, cooperating with one another and with the other members of the "Hukbong Mapagpalaya Ng Bayan" present thereat, tied the hands of JOHN D. HARDIE and DONALD CAPUANO and thereafter shot them to death together with IRENE W. HARDIE. II That on March 21, 1951, in the municipality of Pililla, province of Rizal, some 70 armed members of FC #32 of the "Hukbong Mapagpalaya Ng Bayan" led by Comdr. ROBERT, fought the members of Co "D" of the 14th BCT, Armed Forces of the Philippines under Capt. Conrado Cabague. III That on or about April 21, 1951, in the municipality of Moron, province of Bataan, the accused FERMIN TOLENTINO, as the Commanding Officer of FC 25 of the 'Hukbong Mapagpalaya Ng Bayan', leading some 70 armed members of the said organization, attacked, fired at and engaged into a fight the officers and men of a detachment of the Armed Forces of the Philippines, resulting to the deaths and injuries of some of the said officers and/or men, and that during the same year, in the municipality of Hermosa, same province, the said accused FERMIN TOLENTINO, with a group of armed Huks, attacked and engaged into a fight the officers and men of another detachment of the Armed Forces of the Philippines thereat. IV That on or about November 15, 1952, in the municipality of San Mateo, province of Rizal, the accused DOMINGO DELA TORRE and about 12 other armed men, all members of FC #46, RECO #4, of the "Hukbong Mapagpalaya Ng Bayan", in support of and/or in

furtherance of the movement of the said organization to overthrow the established government of the Republic of the Philippines, while soliciting food from civilians thereat, fought elements of the 7th BCT, Armed Forces of the Philippines and the Civilian Commando Unit of Montalban, Rizal. V That on or about April 5, 1951, elements of the Armed Forces of the Philippines had an encounter with about fifty (50) armed Huks under commander Silang at Sitio Malabayas, Sampaloc, Tanay, Rizal, resulting in the death of one (1) Huk, (2) EM and wounding of another enlisted man. VI That on or about December 11, 1951, elements of the Armed Forces of the Philippines had an encounter with about fourteen (14) armed Huks under Commander Aladdin at Sitio Kaulanog, Tanay, Rizal, resulting in the wounding of one (1) enlisted man. VII That on or about April 28, 1949, at kilometer #62 at Salubsob, in the municipality of Bongabong, in the province of Nueva Ecija, an undetermined number of HMBs jointly led by Commanders Viernes, Marzan, Lupo and Mulong, treacherously ambushed, assaulted, attacked and fired upon the party of Mrs. Aurora A. Quezon and her PC escort, whom they considered as their enemies, resulting in the death of Mrs. Aurora A. Quezon, Baby Quezon, Mayor Bernardo of Quezon City, Maj. P. San Agustin, Lt. Lasam, Philip Buencamino III and several soldiers, and injuries to General Jalandoni and Capt. Manalang. VIII That on or about August 25, 1950, in the municipality of Tarlac, in the province of Tarlac, an undetermined number of armed HMBs, raided, assaulted and attacked Camp Makabulos and set fire on the building and installations therein killing Maj. E. D. Orlino, Capt. E. D. Cruz, Lts. Manacias, N. C. Tan, Eusebio Cabute, and several enlisted men, including Rosario Sotto, a Red Cross Nurse.

IX That on or about August 26, 1950, in the municipality of Sta. Cruz, in the province of Laguna, about 100 armed HMBs with intent of gain and for the purpose of procuring supplies and other materials for the support and maintenance of the HMB organization, forcibly brought the cashier of the Provincial Treasury, Vicente Reventar, from his house to the Provincial Capitol and at the point of guns, forced him to open the treasury vault and therefrom, took money amounting to more than P80,000.00 consisting of different denomination including 50—, 100—, and 500 pesos bills. On this same occasion, these dissidents took and carried away typewriters and other office supplies belonging to the Republic of the Philippines, which they found in the Provincial Capitol building, and also burned and looted private buildings in the said municipality. X That in the various municipalities of Rizal and other provinces throughout the Philippines, the leaders, members and affiliates of the Communist Party of the Philippines and those of the "Hukbong Mapagpalaya Ng Bayan" have committed similar acts of murders, arsons and kidnappings. It appears that in the evening of March 20, 1951, the Hardie Farm in the municipality of Antipolo, province of Rizal, was raided by Huks or members of the "Hukbong Mapagpalaya ng Bayan" (HMB), the armed force of the Communist Party of the Philippines, one of the aims of which is to overthrow by force of arms the Government of the Philippines. After ransacking the place taking therefrom a typewriter and a radio set, as well as stationary, clothings, foodstuffs and various other articles, the raiders tied the hands of John D. Hardie and his foreman Donald Capuano and shot them to death, together with Mrs. Hardie. Late that month, a combat patrol led by Capt. Conrado M. Cabagui of the 14th BCT, with the assistance of one Tomas Timbresa, as guide, located a Huk camp in the Sierra Madre Mountains. The agents of the law attacked and captured the camp, in which they found, among other objects, the radio set and the typewriter, Exhibits A and B, taken by the dissidents from the Hardies. Moreover, on July 26, 1951, appellants Paterno Cruz and Benito Cruz, who are brothers, were apprehended in the barrio of San Rafael, Montalban, Rizal, together with several other persons, by a group of soldiers, under the command of Capt. Jose Carandang, 19th BCT. Upon investigation, said

appellants made the affidavits Exhibits V, X, AA and Y in which they admitted being Huks. Benito Cruz further admitted having risen to the rank of Huk Commander and being known as Commander Silang, with 12 men under him which was confirmed by Paterno Cruz in his statement Exhibit Y. Moreover, Benito Cruz and some of his men indicated the place in the mountain where — as they allegedly defected from the HMB — they hid their arms, which were, accordingly recovered by the authorities. Again, Nicolas Lipunan and Tomas Timbresa testified that they were formerly members of the HMB; that, as such, they were detailed as "cargadores" to transport the goods and effects looted from the Hardie Farm, when it was raided by the Huks on March 20, 1951; that Benito Cruz and Paterno Cruz participated in said raid as members of the HMB; and that (according to Lipunan) Benito Cruz was one of the three (3) Huks who shot Mr. and Mrs. Hardie, and their manager Donald Capuano. Benito Cruz and Paterno Cruz claimed, however, to have made and signed their aforementioned affidavits (Exhibits X and Y) under duress. Furthermore, Paterno Cruz denied having participated in the raid of the Hardie Farm or having any knowledge about the Huks. Said appellants, likewise, introduced the testimony of several residents of Montalban who vouchsafed for them as peaceful and law abiding citizens. His Honor, the Trial Judge, found this evidence insufficient to offset the "overwhelming evidence for the prosecution including the confession" of said appellants. Indeed, the latter did not identify the soldiers that allegedly maltreated them and they showed no visible signs of maltreatment, apart from the fact that their aforementioned affidavits contain some exculpatory statements which are inconsistent with the allegation of duress. Besides, nothing in the records before us indicate a possible motive for any of the witnesses for the prosecution to falsely inculpate appellants Benito Cruz and Paterno Cruz. In short, we find no justification whatsoever for disturbing the conclusion reached on the lower court with respect to the participation of Benito Cruz and Paterno Cruz in the aforementioned raid of the Hardie Farm. Upon the other hand, appellant Fermin Tolentino admitted being a Huk, although he denied having held any rank or responsible position in the organization or having adopted the name "Commander Caviteño." Furthermore, Onofre de Jesus — a member of the HMB from 1943 to 1953 when he surrendered, who had held responsible positions in the organization until he became commanding officer of FC-23 — testified that Tolentino had been Commanding Officer (CO), of the Flying Squad of FC-18 in 1948, CO of the Security Force under Linda Bie in 1949, CO of FC-25 in 1950, G-3 of FC-25 in 1951 and again CO of FC-25 in 1952; that during the

raid of Orani, Bataan, on January 5, 1949, by the Huks, Tolentino was one of the officers who ordered the burning of houses therein; and that said appellant took part, also, in the Huk attack at Camp Makabulos, Tarlac, in August, 1950. Similarly, Pablo Guinto, another former Huk, whose wife is Tolentino's aunt, testified that he (Guinto) formed part of the band of Huks led by Tolentino that attacked Culis, Hermosa, Bataan, on January 11, 1951; that a store was looted on that occasion; that a Chinese was then shot and killed by Tolentino; that he (Guinto) was likewise with the group of Huks, under the command of Tolentino, that raided Orani sometime in 1948 or 1949, Morong, Rizal, on April 21, 1951, and Hermosa, Bataan on December 2, 1951; and that Tolentino was the person responsible for the killing of one Valeriano and his son in the raid of Hermosa. Again, Capt. Julio Dimagiba, commander of the detachment stationed at Dinalupihan, Bataan, in August, 1949, related how he recovered the dead bodies of Baldomero Simbulan, Antonio Cruz and an unidentified hunchback, who were victims of the Huk attack in said municipality on August 23, 1949, and found each corpse with a tag reading "Ako ang pumatay, Commander Caviteño," the alias of appellant Tolentino, who was apprehended at an army check point in Grace Park, Caloocan, Rizal, on May 27, 1953. He then had a gunshot wound on the breast, and tried, at first, to hide his identity by giving a name different from his. Upon investigation, he later confessed to having been a Huk and made the statements Exhibits BB, CC, HH, II and JJ, in which he admitted having been the Commanding Officer of FC-25 and being known as Commander Caviteño. While under detention, in connection with this case, he escaped, but was recaptured somewhere in Pampanga. During the trial, he testified that members of the army had maltreated him and then forced him to sign several statements. Besides, he denied the inscription found in the tags aforementioned, as well as having assumed the "alias Commander Caviteño" or having been with any raiding party of the HMB. Lauro David and Remigio Soliman were, also, placed on the witness stand by appellant Tolentino, to corroborate the latter part of his testimony. Commenting thereon, the lower court had the following to say: The denial and explanation proffered by the accused and his witnesses cannot prevail over the clear and positive testimony of the State witnesses regarding his role in the several raids staged by the HUKs in the province of Bataan, but more particularly in the

Makabulos massacre. On top of all these, the record is replete with at least eight confessions made by the accused Fermin Tolentino on separate occasions. In Exhibit "BB" taken by Sgt. Rejualos on May 27, 1953 and interpreted by Sgt. Quiambao, the accused declared that he joined the HMB as a private, then promoted to squad leader and later to staff officer, G-3 until he became commander of FC No. 25, Reco 2 from October, 1952 to December of the same year; that he was armed with a revolver, caliber 38; that his men were armed with thirty Garands and automatic carbines. Three days later, he gave another statement Exhibit "00" before Atty. Jose de la Fuente wherein he explained how his unit operated in ambushing the enemy; that during his membership, FC No. 25 had an encounter at Moron, Bataan in 1950 and at Pajo between Zambales and Bataan in 1951; that FC No. 25 had 100 men or 12 squads with Bataan as the area of operation. On June 3, 1953 the accused gave another statement, Exhibit "PP", wherein he admitted having joined the HMB as member in 1946 at Lubao, Pampanga; that his reason for joining was his disgust at his father's refusal to allow him to go to places like Manila; that he began his career under Commander Alexander of FC No. 18 (converted into FC No. 25). On July 14, 1953, he gave another statement, Exhibit "HH", before Lt. Estoque and interpreted by Roque Lapuzwherein he recounted offices held, the encounters mentioned in Exhibits "BB" and "OO" and added that in 1950, he studied two months in Reco 2 under Linda Bie as instructor; that he was G-3 of FC No. 25 from July, 1951 to August, 1952. He reiterated his previous statements in another confession on August 18, 1953, Exhibit "II". We are fully in accord with this view. Needless to say, apart from his bare testimony, appellant Tolentino has not introduced any evidence on his alleged maltreatment by agents of the law, aside from the fact that the same is refuted by the exculpatory details contained in his aforementioned statements. As stated in the brief for the Government, appellants herein are guilty of simple rebellion (People vs. Nava, L-9483, January 30, 1960; People vs. Hernandez, 52 Off. Gaz., 4612), inasmuch as the information alleges, and the records show that the acts imputed to them were performed as a means to commit the crime of rebellion and in furtherance thereof, although as Huk Commanders, appellants Benito Cruz and Fermin Tolentino fall under the first paragraph of Article 135 of the Revised Penal Code, which prescribes the penalty of prision mayor and a fine not exceeding P20,000, whereas appellant Paterno Cruz comes under the second paragraph of said article, which prescribes the penalty of prision mayor in its minimum period.

Accordingly, the penalty meted out to appellants Benito Cruz and Fermin Tolentino should be reduced to ten (10) years of prision mayor, with the accessory penalties prescribed by law, and to pay each a fine of P10,000, and appellant Paterno Cruz should be sentenced to six (6) years, eight (8) months and one (1) day of prision mayor, with the accessory penalties prescribed by law. Thus modified as to the designation of the crime committed and the penalties, the decision appealed from is hereby affirmed in all other respects, with the proportionate part of the costs against said appellants. It is so ordered. Bengzon, C.J., Bautista Angelo, Labrador, Reyes, J.B.L., Paredes and De Leon, JJ., concur.

Separate Opinions PADILLA, J., dissenting. I dissent on the point of law only for the reasons stated in my concurring and dissenting opinion in the case ofPeople vs. Geronimo, 53 Off. Gaz., 68, 92.

G.R. No. L-4978 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4974

May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. JOSE LAVA, ET AL., defendants-appellees. ----------------------------G.R. No. L-4975

May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LAMBERTO MAGBOO, ET AL., defendants-appellants.

May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAGNO PONTILLERA BUENO, ET AL., defendants-appellees. Office of the Assistant Solicitor General Pacifico P. de Castro and Solicitor Jorge Coquia for plaintiff-appellee. Recto Law Office, Juan T. David, Crispin D. Baizas and Delgado, Flores, Macapagal and Dizon for defendant-appellant Jose Lava. Cipriano C. Manansala for defendants-appellants Federico Maclang, Lamberto Magboo, Honofre D. Magila, Marcos Medina, Cenon Bungay and Magno P. Bueno. R. M. Paterno for defendants-appellants Marciano de Leon and Cesareo Torres. Irineo M. Cabrera for defendant-appellant Iluminada Calonje. Salonga, Ordoñez and Associates for defendants-appellants Angel Baking and Arturo Baking. Jose P. Laurel Law Office for defendant-appellant Simeon Rodriguez. J. Antonio Araneta, Claudio Teehankee and Manuel O. Chan for defendantappellant Federico Bautista. Ismael T. Torres for defendant-appellant Felipe Engreso. Meliton Soliman for defendant-appellant Nicanor Razon, Sr.

----------------------------G.R. No. L-4976

May 16, 1969

ZALDIVAR, J.:

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SIMEON G. RODRIGUEZ, ET AL., defendants-appellees.

These are appeals from the joint decision of the Court of First Instance of Manila in its Criminal Cases Nos. 14071, 14082, 14270, 14315 and 14344.

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

In Criminal Case No. 14071, the defendants were Jose Lava, Federico Bautista, Federico Maclang, Ramon Espiritu, Salome Cruz y Adriano, Rosario C. viuda de Santos and Angel Baking. The appeal from the decision in this case is now in G.R. No. L-4974 before this Court.

G.R. No. L-4977

May 16, 1969

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. HONOFRE MANGILA, ET AL., defendants-appellants. -----------------------------

In Criminal Case No. 14082, the defendants were Lamberto Magboo, Nicanor Razon, Sr., Esteban Gonzales y la Torre, Marcos Medina, Cesario Torres, Rosenda Canlas Reyes, and Arturo Baking y Calma. The appeal from the decision in this case is now in G.R. No. L-4975 before this Court.

In Criminal Case No. 14270, the defendants were Simeon Gutierrez y Rodriguez, Julita Rodriguez y Gutierrez, and Victorina Rodriguez y Gutierrez, and Marciano de Leon. The appeal from the decision in this case is now in G.R. No. L-4976 before this Court. In Criminal Case No. 14315, the defendants were Honofre D. Mangila and Cenon Bungay y Bagtas. The appeal from the decision in this case is now in G.R. No. L-4977 before this Court. In Criminal Case No. 14344 the defendants were Magno Pontillera Bueno, Nicanor Capalad, Rosalina Quizon, Pedro Vicencio, Julia Mesina, Felipe Engreso, Elpidio Acuño Adime, Josefina Adelan y Abusejo, Conrado Domingo, Aurora Garcia, and Naty Cruz. The appeal from the decision in this case is now in G.R. No. L-4978 before this Court. All the above-named defendants were charged with having committed the complex crime of rebellion with murders and arsons under an identical information, filed in each of the five cases, which reads as follows: . That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously up to the present time, in the City of Manila, the seat of the Government of the Republic of the Philippines which the herein accused have intended to overthrow, and the place they have chosen for that purpose as the nerve center of all their rebellious activities in the different parts of the country, the said accused being then high ranking officers or otherwise members of the Communist Party of the Philippines (PKP) of which the "Hukbong Mapagpalaya ng Bayan" (HMB) otherwise or formerly known as the Hukbalahap (Huks), is its armed forces, having come to an agreement and decided to commit the crime of rebellion, and therefore, conspiring and confederating together, acting with many more others whose whereabouts and identities are still unknown up to the filing of this information, and helping one another, did then and there willfully, unlawfully, and feloniously promote, maintain, cause, direct and/or command the Hukbong Mapagpalaya ng Bayan (HMB) or the Hukbalahaps (Huks) to rise publicly and take arms against the Government or otherwise participate therein for the purpose of overthrowing the same, as in fact the said Hukbong Mapagpalaya ng Bayan or Hukbalahaps (Huks) have risen publicly and taken arms against the Government, by then and there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachments, and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, by then and there committing wanton acts of murder, spoilage, looting, arson, planned destruction of private and public buildings, to create and spread terrorism in

order to facilitate the accomplishment of the aforesaid purpose, as follows, to wit: (1) On May 6, 1946, the 10th MPC Co. led by First Lt. Mamerto Lorenzo while on patrol duty in the barrio of Santa Monica, Aliaga, Nueva Ecija, was with evident premeditation on the part of the huks ambushed and treacherously attacked by a band of well-armed dissidents or rebels. Ten enlisted men of the MP company were killed. First Lt. Mamerto Lorenzo was captured and beheaded by the rebels. (2) On August 6, 1946, a group of more than 30 Huks under the leadership of Salvador Nolasco armed with guns of different calibers raided the municipal building of Majayjay, Laguna. They were able to get one Garand, one carbine, one Thompson GMG, and one pistol. They also took one typewriter and stationery (NR Laguna, dated Sept. 2, 1946). (3) On April 10, 1947, 14 EM under the command of Lt. Pablo C. Cruz, while on their way to investigate a holdup in the barrio of San Miguel na Munti, Talavera, Nueva Ecija were with evident premeditation and treachery on the part of the Huks ambushed and fired upon by Huks armed with 30-caliber rifles, machine guns, and grenades. Lt. Pablo Cruz and Pvt. Santiago Mercado were killed and 6 others were wounded. (4) On May 9, 1947, Huks numbering around 100 under Lomboy and Liwayway raided the town proper of Laur and forced Municipal Treasurer Jose A. Viloria to open the treasury safe and obtained therefrom more than P600. Policeman Fermin Sanchez was taken by the bandits with one Springfield rifle. Bandits robbed the towns people of their money, personal belongings, rice and carabaos (WITR May 10, 1947). . (5) On August 19, 1947, Capt. Jose Gamboa, First Lt. Celestino Tiansec, and Second Lt. Marciano Lising, all from the 115th Co., while riding in a jeep following an armored car, were treacherously fired upon by a group of about 100 dissidents armed with automatic rifles, Thompsons, and Garands and lined up on both sides of Highway No. 5 near the cemetery of San Miguel, Bulacan. First Lt. Celestino Tiansec and Second Lt. Marciano Lising were killed.

(6) In or about the month of June, 1946, Alejandro Viernes, alias Stalin, commander of Joint Forces No. 108 with about 180 men, entered the town of Pantabangan, Nueva Ecija, and raised their Huk flag for more than twenty-four hours. The Municipal officials did not offer any resistance because of the superiority in number of the Huks. After demanding from the civilians foodstuffs such as rice, chickens, goats, and carabaos, they left the town, admonishing the civilians always to support the Huk organization. The MP forces under Capt. Ponciano Hanili, S-3, Capt. Federico C. Olares, then Asst. S-3, of Nueva Ecija province, proceeded to Pantabangan with forces of the 112th MP Co. under Capt. Nicanor Garcia, to verify the information, but were not able to contact the dissidents at Pantabangan. They proceeded to the barrio of Marikit, between Pantabangan and Laur, where they engaged some dissidents. When our forces were on their way home, they were pocketed by the dissidents at the zigzag road, but owing to the initiative of our forces, they were able to extricate themselves from their precarious position and were able to fire their mortars and Cal. 50 and .30 machineguns. Investigations made on the field of battle showed that the Huks suffered heavy casualties which was verified later to have been seven cart loads of dead men. (Special Report, PC Nueva Ecija, dated February 23, 1948.) (7) Mrs. Aurora Aragon Quezon and party were with evident premeditation and treachery on the part of the Huks ambushed at about 10:30, 28 April 49 by an undetermined number of dissidents under Commanders Viernes, Marzan, Lupo and Mulong at kilometer 62, barrio Salubsob, Bongabong, Nueva Ecija. PC escort exchanged fire with the dissidents. Patrol of the First Heavy Weapons Company, 1st PC Battalion was dispatched to reinforce the PC escort. The following persons were killed: Mrs. Quezon, Baby Quezon, Mayor P. Bernardo, Major P. San Agustin, A. San Agustin, Lt. Lasam, Philip Buencamino III, and several soldiers. General Jalandoni and Capt. Manalang sustained slight wounds. (8) On August 25, 1950, Camp Macabulos, Tarlac, Tarlac was attacked, raided and set fire to and among the casualties therein were Major D. E. Orlino, Capt. T. D. Cruz, Lt. G. T. Manawis, Lt. C. N. Tan, Lt. Eusebio Cabute, Sgt. Isabelo Vargas, Sgt. Bernardo Cadoy, Sgt. Bienvenido Bugay, Sgt. Samuel Lopez, Cpl. Vicente Awitan, Cpl. Ruiz Ponce, Cpl. Eugenio Ruelra, Pvt. Agustin Balatbat, Saturnino Guarin, E. Cabanban, Antonio Monte, Felix Quirin, Gregoria Balcoco, Jose Mojica, Cornelio Melegan, Carlos Bojade, Rodrigo Espejo and Rosario Sotto, a Red Cross nurse.

Counsel for defendants Jose Lava and Federico Bautista filed a motion to quash the information against them upon the grounds that the information did not conform to the prescribed form, that it charged the defendants with more than one offense, and that the court had no jurisdiction over the offense charged. Also filed was a petition for provisional liberty under bail of 14 of the defendants, upon the grounds that (1) the evidence of guilt was not strong and (2) the suspension of the writ of habeas corpus under Proclamation No. 210, dated October 22, 1950, by the President of the Philippines was unconstitutional. Both motion and petition were denied by the trial court in an order dated November 1, 1950. Upon agreement of the prosecution and the defense, and with the conformity of all the defendants, the five cases were tried jointly, with the understanding that each defendant could present his/her separate and independent defenses. Notwithstanding the fact that several witnesses had already testified in the first two cases (Criminal Cases Nos. 14071 and 14082) at the time the other three cases (Criminal Cases Nos. 14270, 14315 and 14344) were filed, the defendants in the latter three cases expressed their conformity to a joint trial with the first two cases and agreed that the evidence already taken in the first two cases be reproduced in the latter three cases. While the joint trial was being held, the prosecution, after a reinvestigation of the cases, moved that the case with respect to defendant Julia Mesina be dismissed upon the ground of insufficiency of evidence. After the trial and before the cases were submitted for decision, the prosecution also moved for the dismissal of the case against defendant Rosenda Canlas Reyes upon the ground that the evidence on record was not sufficient to support her conviction. Both motions were granted by the trial court. After the joint trial, the trial court rendered a joint decision in the five cases, dated May 11, 1951. In Criminal Case No. 14071, the court found defendants FEDERICO MACLANG alias Eto alias O. Beria aliasOlibas alias Mariano Cruz alias Ambrosio Reyes alias Manuel Santos; RAMON ESPIRITU alias Johnny alias Ka Johnny; ILUMINADA CALONJE alias Salome Cruz alias Luming; JOSE LAVA alias Harry alias Felix Cruz aliasGaston Silayan alias Gaston alias Gregorio Santayana alias Greg alias Gavino; FEDERICO M. BAUTISTA aliasFreddie alias Fred; ANGEL BAKING alias Angel alias Boriz alias Bayan; and ROSARIO VDA. DE

SANTOS aliasCharing, guilty as principals of the complex crime of rebellion with multiple murder, arsons, and robberies, and pursuant to Article 248, subsections 1 and 3 of the Revised Penal Code, in connection with its Article 48, sentenced defendants Federico Maclang, Ramon Espiritu and Iluminada Calonje to the capital penalty of death; and defendants Jose Lava, Federico M. Bautista, Angel Baking, and Rosario C. Vda de Santos to reclusion perpetua. The defendants were also ordered to pay the costs in this case. In imposing the death penalty upon Federico Maclang, Ramon Espiritu and Iluminada Calonje, the court took into consideration not only the very nature of the crime committed but also the aggravating circumstance that the said three defendants secured the aid of persons under 15 years of age in the commission of the crime. In Criminal Case No. 14082, the court found defendants CESAREO TORRES alias Cesareo Yacat, alias Leoalias Leodones; ARTURO BAKING Y CALMA alias Arturo C. Baking alias A. C. Baking alias Arturo Calma Bakingalias Eduardo Santos, and MARCOS MEDINA alias Hiwara guilty as principals of the complex crime of rebellion with multiple murder, arsons, and robberies and sentenced the said defendants to reclusion perpetua. The court also found defendants LAMBERTO MAGBOO alias Berting alias Eddie and NICANOR RAZON, SR., alias Elias Ruvi, as accomplice in the commission of the said crime and were sentenced to an indeterminate prison term of ten (10) years of prision mayor as minimum to seventeen (17) years of reclusion temporal as maximum. The court did not find sufficient evidence to establish the guilt of the defendant ESTEBAN GONZALES Y LA TORRE, alias Esteban La Torre Gonzales, either as principal or accomplice in the commission of the said crime. The court, however, found him guilty as member of the Communist Party in the Philippines, which is an illegal association, and pursuant to Article 147 of the Revised Penal Code, the said defendant was sentenced to four (4) months of arresto mayor. All the defendants were ordered to pay costs. In Criminal Case No. 14270, the court found defendants SIMEON GUTIERREZ Y RODRIGUEZ alias Simeon Rodriguez alias Sammy alias S. G. R. alias Lakindanum; MARClANO DE LEON Y ESPIRITU alias Marciano E. de Leon alias Marcial alias Mar, guilty as principals in the commission of the complex crime of rebellion with multiple murder, arsons, and robberies; and JULITA RODRIGUEZ Y GUTIERREZ alias Judith alias Juling alias Juliet aliasJulie, as accomplice in the commission of the said crime, and sentenced defendants Simeon

Gutierrez y Rodriguez, and Marciano de Leon y Espiritu to reclusion perpetua; and defendant Julita Rodriguez y Gutierrez to an indeterminate prison term of ten (10) years of prision mayor as minimum to seventeen (17) years of reclusion temporal as maximum. These defendants were ordered to pay the costs. The court acquitted defendant VICTORINA RODRIGUEZ Y GUTIERREZ alias Vicky alias Toring. In Criminal Case No. 14315, the court found defendants CENON BUNGAY Y BAGTAS alias Ruping aliasCommander Ruping alias Bagtas and HONOFRE D. MANGILA alias Onofre Mangila alias Tommy alias Miller guilty as principals of the complex crime of rebellion with multiple murder, arsons and robberies, and pursuant to the provision of Article 48 of the Revised Penal Code the said defendant Cenon Bungay y Bagtas and Honofre D. Mangila were sentenced to death. In arriving at this decision the court took into consideration the gravity of their participation in the said complex crime, the first being a Huk squadron commander, who led and took part in several raids and ambuscades conducted by the HMB and caused the killing of Major Leopoldo Alicbusan of the PC Detachment at San Pablo City, Laguna, and the second (Mangila) being a member of the powerful Central Committee of the Communist Party in the Philippines, which elects the Politburo members. The said defendants were also ordered to pay the costs. In Criminal Case No. 14344, the court found defendant MAGNO PONTILLERA BUENO alias Magno Buenoalias Mamerto Banyaga alias Narding, guilty as principal of the complex crime of rebellion with multiple murder, arsons, and robberies and sentenced the said defendant to death. The court, likewise found defendants ROSALINA V. QUIZON alias Regina Quiambao; PEDRO VICENCIO alias Pedring; FELIPE ENGRESO alias Ipe; JOSEFINO ADELAN Y ABUSEJO alias Fely; ELPIDIO ACUÑO ADIME alias Rolly, alias Rolly Enriquez alias Rol aliasPidiong, and NATY CRUZ alias Natie alias Naty alias Spring, and CONRADO DOMINGO alias Adong guilty beyond reasonable doubt as accomplices in the commission of the said crime and sentenced the said Rosalina Quizon and Pedro Vicencio to an indeterminate penalty of ten (10) years of prision mayor as minimum to seventeen (17) years of reclusion temporal as maximum; and Felipe Engreso, Josefina Adelan and Conrado Domingo to an indeterminate prison term of four (4) years of prision correccional as minimum to ten (10) years of prision mayoras maximum. The last three accused were declared entitled to the privileged mitigating circumstance of minority, they being under 18 years of age.

With respect to defendants Elpidio Acuño Adime and Naty Cruz, they being under 16 years of age, further proceedings were suspended and pursuant to the provision of Article 80 of the Revised Penal Code, the court ordered that the said Elpidio Acuño Adime be committed to the Boys' Training School and Naty Cruz to the Girls' Training School at Mandaluyong, Rizal under the custody and supervision of the Commissioner of Social Welfare or his authorized representatives until they reach the age of majority or until further orders of the court. The Commissioner of Social Welfare was directed to submit to the court every four months a written report on the good or bad conduct of the said minors, on the moral and intellectual progress made by them during the period of their confinement in said institutions. The court acquitted defendants NICANOR CAPALAD alias Canor and AURORA GARCIA alias Laring. All the defendants except Nicanor Capalad and Aurora Garcia were ordered to pay the costs. In imposing the capital penalty on Magno Pontillera Bueno the Court took into account not only his being a member of the powerful Central Committee of the Communist Party jointly with Federico Maclang and Honofre Mangila but also his being an instructor on Military Tactics in the "Stalin University", the military training school for Huks in the mountains. The rights to file a civil action to recover indemnity for the death of the victims of the murders specifically referred to in these cases were reserved to the heirs of the said victims. Thus, of the original 31 defendants in these five criminal cases, five were acquitted, namely: Julia Mesina, Rosenda Canlas Reyes, Victorina Rodriguez y Gutierrez, Nicanor Capalad and Aurora Garcia. Of the 26 who were convicted, all appealed to this Court except defendant Esteban Gonzales la Torre. Later, defendants Rosalina Quizon, Elpidio Acuño Adime, Josefina Adelan Abusejo, Conrado Domingo and Naty Cruz withdrew their appeal. During the pendency of the appeal, defendants Julita Rodriguez y Gutierrez and Magno Pontillera Bueno died. The appeals now before this Court, therefore, involve only 18 defendants, namely: Jose Lava, Federico Bautista, Federico Maclang, Ramon Espiritu, Salome Cruz, Rosario Vda. de Santos, Angel Baking, Lamberto Magboo, Nicanor Razon, Marcos Medina, Cesareo Torres, Arturo Baking, Simeon G. Rodriguez, Marciano de Leon, Honofre Mangila, Cenon Bungay, Pedro Vicencio, and Felipe Engreso.

Upon petition by the Deputy Chief, Military Intelligence Service (MIS) of the Armed Forces of the Philippines, this Court, by order of March 7, 1952, appointed the MIS the custodian of the exhibits and documents that were presented as evidence in these five criminal cases before the trial court. This step was taken because those documents and exhibits were needed also as evidence in other courts in the prosecution of other members of the HMB (Hukbong Mapagpalaya ng Bayan). Later, by order of April 14, 1955, this Court appointed the Staff Judge Advocate of the Philippine Constabulary the custodian of the same documents and exhibits. Those documents and exhibits were kept at the headquarters of the Philippine Constabulary at Camp Crame, Quezon City. On September 10, 1958 the headquarters of the PC was destroyed by fire, and all those documents and exhibits were burned. Upon a petition for the reconstitution of the said documents and exhibits, this Court appointed Deputy Clerk of Court Bienvenido Ejercito as Commissioner to receive evidence for the reconstitution of those documents and exhibits. The Commissioner, after due hearing, submitted his report, dated October 6, 1959, recommending that the documents and exhibits that were burned be declared reconstituted by the photostatic copies of the originals of those documents and exhibits. The Commissioner stated in his report that those photostatic copies were duly identified during the hearings on the reconstitution. Over the objection of counsels for the defendants-appellants, this Court approved the report of the Commissioner. Counsels for the appellants were allowed by the Court all the time that they needed to prepare the briefs for the appellants. The last brief for the appellants was filed on January 22, 1963. The Solicitor General filed the brief for the appellee (People of the Philippines) on June 29, 1963. These appeals were set for hearing on oral argument on August 28, 1963. On that date counsel for some of the defendants-appellants argued the case for their clients; and counsels for other defendants-appellants were given a period of 20 days to submit a memorandum in lieu of oral argument. The Solicitor General was likewise granted leave to submit a reply memorandum within 20 days from the receipt of the copies of the appellants' memoranda. Upon the filing of the memoranda these cases were considered submitted for decision. These cases have been pending for decision in this Court since October, 1963, and it would seem that this Court has not acted with dispatch in the disposition of these cases. It must be known, however, that this Court has been swamped with cases appealed from the lower courts and from administrative bodies and officials, as provided by law, and despite the arduous labors by the members of this Court the docket of this Court has been, and still is, clogged. There are numerous criminal cases appealed to

this Court ahead of these five cases. Certainly the appellants in those earlier appealed criminal cases deserve the same concern from this Court that the appellants in these five cases expect for themselves. The record of these five cases, consisting of the "rollos", the transcript of the stenographic notes taken during the trial and the documentary exhibits, is so voluminous that when piled vertically it would stand almost three feet high. The record has to be meticulously examined and studied by the members of this Court, working as a collegiate body. In deciding cases, this Court inclines more to careful study and deliberation rather than to dispatch. Existence and activities of the CPP and HMB We have thoroughly examined the testimonial and documentary evidence in the present cases, and We find it conclusively proved, as did the lower court, that as of the year 1950 when elements of the police and armed forces of the Government arrested the defendants in these five cases there was already a nationwide organization of the Communist Party of the Philippines (CPP), and that said party had a well-organized plan to overthrow the Philippine Government by armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China. The Communist Party of the Philippines had as its military arm the organization known as the "Hukbong Mapagpalaya ng Bayan" (HMB), otherwise or formerly known as the Hukbalahaps (Huks). It is established that the rebellious activities of the HMB, and the commission of common crimes in different parts of the country by the HMB, were directed by the Communist Party of the Philippines through its Politburo (PB) and/or Secretariat (SEC). The Politburo and/or the Secretariat gave orders to the field through its general headquarters (GHQ) and its regional commands (RECOS), and reports to the Politburo and/or Secretariat were made regarding the activities of the HMB, giving accounts of the sorties or ambushes and attacks against elements of the police, the Philippine Constabulary and the army, and of killings, lootings and destruction's of property. It is also established that the plan of the Communist Party was not only to overthrow the Philippine Government but also to kill officials of the Government and private individuals who refused to cooperate with the rebels, and orders to this effect were transmitted to the HMB. Among the documentary evidence presented during the trial is the Constitution of the Communist Party of the Philippines, one of the documents seized in one of the raids when some of the appellant were arrested. In this document it is shown that the CPP has a National Congress (NC) which is the highest Authority in the party. The National Congress formulates the policies of the party, and determines the functions of the party and of the standing committees; it renders decisions on all problems

regarding organizations and tactics, and on appeals brought before it; and it elects the members of the Central Committee (CC). The Central Committee, which is the highest authority when the National Congress is not in session, enforces the Constitution, implements the policies formulated by the National Congress, promulgates Rules and regulations, supervises all political and organizational work of the party, takes charge of financial matters and renders an accounting thereof to the National Congress, and elects the General Secretary (SEC) and all the members of the Politburo. The Politburo (PB) is the real executive body of the party, and is responsible for the execution of the powers and duties of the Central Committee when the latter is not in session. The General Secretary and the Politburo are responsible to the Central Committee for all their decisions and actions. Then there are departments, bureaus, committees and other organizational units. There is the National Education Department (NED), the educational Department (ED), the Organization Bureau (OB), the Organizational Department (OD), the District Organization Committee (DOC) the Peasants' Organization (PO), the Trade Union Department (TUD), the Sanggunian Tanggulang Baryo (STB), the Military Committee (MC), the General Headquarters (GHQ), the Regional Command (RECO), the Field Command (FC), the Battalion (BN), the Company, (CO), the Platoon (PLN), and the Squad (SQD). There is also the National Finance Committee (NFC) in charge of the financial matters of the Party, the RECO Finance Committee (RFC), the District Finance Committee (DFC), the Field Command Supply Officer (FC-G-4), the Battalion Supply Officer (Bn-G-4), the Company Supply Officer (Co-G-4), the Platoon Supply Officer (Pln-S-4), the National Courier Division (NCD), the Reco Courier Division (RCB), the Central Post (CP), and Field Command Courier (FC-Courier). The Secretariat provisionally assumed the functions of the GHQ which was abolished by the Politburo in its conference in January 1950. The Secretariat alone has final authority to impose the death penalty in court martial cases where SECCOM (National Committee) cadres are involved. Several SEC transmissions to the Politburo members assigned to regional commands indicate that the Secretariat discussed plans of attack by the HMB, distributes forces, and supplies intelligence information. There is the National Courier (or Communication) Division (NCD), which is in charge of the communication system of the CPP, and the distribution of supplies to the different regional commands in the field. There is a Special Warfare Division, in charge of operating technological warfare against the enemy such as the use of homemade bombs, molotov cocktails, land mine traps, etc. There is the Technical Group (TG) which attends to the manufacture of homemade firearms and other weapons. This group includes chemists and engineers. Then there is the National Intelligence Division, in

charge of gathering military intelligence, as well as political and economic intelligence. For purposes of regional commands, the Philippines was divided geographically into ten regions in order to facilitate the political, military, and economic administration by the Communist Party of the Philippines. Those regional commands are as follows: . RECO 1 — Nueva Ecija, Pangasinan and lower Mt. Province. RECO 2 — Pampanga, Tarlac, Zambales and Bataan. RECO 3 — Bulacan and Rizal, except the towns under City Command. RECO 4 — Laguna, Batangas, Quezon and Cavite. RECO 5 — Camarines Norte, Camarines Sur, Albay and Sorsogon. RECO 6 — Panay, Negros, Cebu, Samar, Leyte, Bohol and Palawan. RECO 7 — Davao, Lanao, Cotabato, Zamboanga and Agusan. RECO 8 — Cagayan Valley provinces and Nueva Viscaya. RECO 9 — Ilocos Norte, Ilocos Sur, Abra, and La Union. CITY COMMAND — Manila, Malabon, Caloocan, Navotas, San Francisco del Monte, Quezon City, Mandaluyong, San Juan, Marikina, Pasig, Guadalupe, Pasay, Baclaran, Parañaque, Muntinglupa and Alabang. The Communist Party of the Philippines has a flag, colored red, with the symbols of the hammer and the sickle (Exhibit A), and a newspaper organ called "TITIS". In the general plan to indoctrinate the masses into communistic ideas and principles, communist schools — some of them called "Stalin University" — were set up in a number of places in the

mountain fastnesses, where trained instructors gave lectures and taught lessons in the principles of Karl Marx, Frederich Engels, Joseph Stalin and Nicolai Lenin. . As has been stated, the CPP has an armed force, which is the HMB. The predecessor of the HMB was the HUKBALAHAP, an organization created by the party during the Japanese occupation to resist the Japanese forces. Upon liberation of the Philippines, the members of the Hukbalahap continued their activities, the organization was renamed HMB, and its members were indoctrinated in communistic principles. The members of the HMB are known as "Huks". The tie-up between the CPP and the HMB is established beyond doubt by the evidence. It is shown that the heads of the CPP were in regular communication with the leaders of the HMB, and the raids, ambushes, burnings, lootings and killings were planned and authorized by the CPP. Appellant Federico Maclang, who is a member of the Politburo, in his testimony, admitted that the HMB is the armed force of the CPP. Luis Taruc, who at the time was the head of the HMB, participated in the meetings and deliberations of the CPP. Some instances may be cited: (1) When Luis Taruc, leader of the HMB, was interviewed by Manuel Manahan representing the newspaper "Bagong Buhay", sometime in July 1950, the said interview was planned, approved and authorized by the Secretariat of the Communist Party. The purpose of the interview was to make Taruc declare about the true status of the leadership in the HMB and the CPP, and belie reports of division among the leaders; (2) When appellant Simeon Rodriguez, a member of the Politburo and a ranking member of the National Finance Committee, was arrested at 268 Pasaje Rosario, Paco, Manila on October 18, 1950, there were found in his possession 65 P100-bills and 60 P50-bills and also P145 circulating notes and $312 in paper currency whose serial numbers (except two dollars) tallied with the serial numbers of part of the money (amounting to more than P80,000) that was taken by the Huks from the safe of the office of the Provincial Treasurer when they raided Sta. Cruz, Laguna, on August 26, 1950. Provincial Treasurer Balbino Kabigting of Laguna had a record of the serial numbers of the money taken by the Huks, and he even issued a warning to the public about the loss of the money — mentioning in the warning the serial numbers of the money taken. There are documents showing that this money taken from the provincial treasury of Laguna was the subject of communications between Luis Taruc and appellant Federico Maclang and other members of the Secretariat. Written articles and official publications of the CPP and HMB, which were presented as evidence, show the tie-up between the CPP and HMB. Following are some excerpts from those publications:

As the situation now stands, it can be assumed that the HMB under Communist leadership, already enjoys a quantitative edge over the Nationalista Party ... (Exh. K-211, p. 7, "Struggle against Awaitism". Emphasis supplied).

In quick succession, the Party celebrated the eighth anniversary of the HMB by the coordinated military operations from the far north down to southern Luzon ... (Exh. O-33, Folder of Exhibits, Vol. V)

The enemy was caught by surprise. The CPP and the HMB it is leading scored a tremendous political victory ... (Exh. O-33, "Twenty Years of Struggle of the CPP." Emphasis supplied)

The Secretariat issued the following instructions in connection with the May 1, 1950 (Labor Day) attack:

Documentary and testimonial evidence establish that the various raids and ambuscades perpetrated by the HMB were planned, directed and supported by the CPP. Thus, in the "Milestones in the History of the CPP", written by appellant Jose Lava, it is stated that at the enlarged Politburo conference of January, 1950, it was decided to intensify HMB military operations for political and organizational purposes. The widespread raids and attacks on the occasion of the 8th HMB anniversary (March 28-29, 1950) was decided at the PB conference: The conference specifically decided to launch coordinated military operations on the occasion of the eight anniversary of the HMB. (Exh. 249, Folder of Exhibits, Vol. V.) The CPP ordered the HMB to fight the Philippine Constabulary and attack government installations. Thus testified Benjamin Advincula, a former high ranking HMB member, who said that when he was Secretary of RECO No. 4, he received orders for transmission to the HMB to fight the Philippine Constabulary. Attacks by the HMB were also reported to the CPP. The accomplishments, for instance, of RECO 2 during the attacks at dawn on March 29, 1950 were reported in Enteng's (Luis Taruc) letter to the Secretariat on April 1, 1950. This letter reported the ambush and liquidation of Captain Dumlao and others; the attack and burning of the CG (Civilian Guard) camp at Manibong, Porac, and the capture of arms and ammunitions thereat; the losses on the enemy side; the burning of 12 houses and the liquidation of 2 spies at Mabalacat, Pampanga. A similar report was furnished by a certain Pedring of RECO 2 in a letter to Eto (Federico Maclang) dated April 2, 1950. It was, in fact, the Communist Party that celebrated the eighth anniversary of the HMB, as appears in the Communist Party document "Twenty Years of Struggle of the CPP" in which we read about the simultaneous attacks of the HMB on March 29, 1950 the following:

... Repeat March 29 simultaneous attacks to time with May 1 celebration to convince the workers of the peasants' unity in struggle with them. Party and HMB messages to be sent. (Exh. O313, Folder of Exhibits, Vol. V) Replying to said order (Exh. 0-313), the Politburo representative of Regional Command No. 3 wrote Gaston (Jose Lava of the Secretariat) and said: Ukol sa Plan for May lst OK. We will try our best to accomplish our part without hesitation. (Exh. M-179, Folder of Exhibits, Vol. III). The May 1, 1950 attack was followed by simultaneous attacks by the HMB on August 26, 1950, in commemoration of the first "Cry of Balintawak." These attacks were again decided, planned and directed by the Communist Party of the Philippines as shown by transmissions from the Secretariat to the Politburo members in the field. (Exhs. O-93; par. 2; O-102, par. 6). The attacks on August 26, 1950 were also ordered by the Secretariat, because the evidence shows that the Secretariat required submission of complete report thereof, and reports were in fact submitted by Taruc (Enteng) on September 9, 1950 (Exhs. O-638, par. 8; O-278). The Communist Party also planned the attack for November 7, 1950, the 20th anniversary of the CPP, which required bigger operations than the attack of August 26, because towns were to be captured, barracks and jails were to be raided and political enemies were to be liquidated. The SEC assigned and allocated the forces to different phases and places of operations. In hand-written notes identified by expert witness to have been written by appellant Jose Lava, the following appears in connection with the plans for November 7: ... Coordinated — Core: Capture of towns near Manila, but near Mt. bases — Coordination of RECO 2, 3 & 4, Rizal — Cavite.

Pol liquidation in City. Bringing fight near strategic political, military and economic centers Supporting RECO 1 in ILOCOS & CAGAYAN. RECO 5 in BICOL & RECO 6 in VISAYAS. (Exh. O-12.) As We have stated, the primordial objective of the Communist Party of the Philippines and of its armed force, the HMB, was to overthrow the Philippine Government by armed struggle. To attain this objective, the CPP also envisioned the following expansion: of the cadres from 3,600 in July, 1950 to 56,000 in September 1951; of the party members from 10,900 in July, 1950 to 172,800 in September, 1951; of HMB members from 10,800 in July, 1950 to 172,800 in September, 1951; and of the organized masses from 30,000 in July, 1950 to 2,430,000 in September, 1951. The Communist Party declared the existence of a revolutionary situation in November, 1949 and went underground. This appears in the following excerpts from documents that were presented as evidence during the trial. Quickly sizing up the existence of a revolutionary situation, arising from the merger ... of the crises of production due to the imperialist-feudal domination of our economy, and the parliamentary crises due to fraud and terrorism in the 1949 elections, the CPP openly called on the people to overthrow the Liberal Party puppets of the American imperialists. (Exh. O-32, "Twenty Years of Struggle of the CPP", Exh. O-12 [hh]) In the Philippines, the CPP has already declared the existence of a revolutionary situation; and it is concentrating all its energies towards the hastening of the maturity of the revolutionary situation into a crisis leading to the overthrow of the imperialist puppets and the achievement of the NEW DEMOCRACY. (Exh. O949, "Strategy and Tactics," Exhs. O-126-141) . The CPP has declared the existence of a revolutionary situation; since November, 1949, as a result of the merger of the crisis in production of our imperialist feudal dominated economy and the crisis of the burgeois parliamentarism ... Since then, the CPP went completely underground, and openly called on the people for the armed overthrow of the power of American imperialism and its allies in the Philippines exercised through its puppets ... (Exh. O-65)

The Communist Party of the Philippines is leading the armed struggle for national liberation and the establishment of a New Democracy in order to crush the power of the exploiters, achieve power for the exploited classes, and who are disposed to accept the new society ..." (Exh. O-119 "Accounting for the Peoples' Fund Received and Spent to Finance the Revolution"; see also Exhs. K12 (u), N-570-573, M-1574, K-244, O-749-56, Documents approved by SEC in its meeting on February 15, 1950. Exh. O-312, par. 3. See Vol. III, Folder of Exhibits) ... The Communist Party marks the 54th anniversary of the CRY OF BALINTAWAK calling on the people to join the HMB in annihilating the enemy today, no different from the enemy denounced by Bonifacio. (Exh. M-1524, Vol. III, Folder of Exhibits). We find that the criminal acts, consisting of attacks against Philippine Constabulary, murders, robberies, kidnapping, arson, etc. alleged in the information are duly proved by evidence presented during the trial. It is noteworthy that the appellants did not attempt to disprove the evidence regarding the commission of these crimes. Besides those alleged in the information, there were other acts of attacks against the Philippine Constabulary, murders, robberies, etc. that were committed by the Huks that are proved by the evidence — also not disproved by the appellants — as follows: (1) On March 29, 1950, a band of armed Huks carrying a communist flag raided San Pablo, Laguna. An encounter with the 27th PC Company ensued, and several members of the PC were injured. The Huks looted several Chinese stores. (2) At about 3 o'clock in the morning of August 26, 1950, approximately 400 Huk dissidents armed with machine guns and rifles attacked Santa Cruz, Laguna. The cashier of the office of the Provincial Treasurer was forced at gun point, to open the vault from which the Huks took more than P80,600. The Huks also took typewriters and office supplies from the office of the Provincial Treasurer. The Huks, after forcing the warden to give the keys, opened the provincial jail and released the prisoners. The provincial jail was later burned. The Huks looted houses and took rice, cigarettes and clothes, and burned five buildings.

(3) On March 29, 1950, several Huks raided San Mateo, Rizal, opened the safe in the municipal building and took money. They also got food and medicines from the townspeople.

Mayor Collantes saw a red flag hoisted by the dissidents. Two of the Huk dissidents were killed. Issues raised by appellants

(4) On August 28, 1950, Huks attacked the municipal building of Arayat, Pampanga, and forced the municipal mayor at the point of a gun to give P3,629.31 in cash and some documentary stamps. Killed during the incident was one Atty. Samia. (5) On March 28, 1950, about 80 to 100 Huks attacked San Rafael, Montalban, killing 4 and wounding all soldiers. After the attack, the Huks left communist propaganda leaflets. (6) On August 30, 1949, upon receiving a report that there was a concentration of Huks at Kamog, San Jose del Monte, Bulacan, Lt. Restituto A. Bisda organized a patrol of 20 enlisted men. On the way the patrol was fired upon by the Huks. After the encounter, one Huk member was found dead and from his body were taken several documents. (7) On October 15 and 17, 1950, P.C. Lt. Velasquez led three platoons of soldiers to the southwestern slope of Mount Malipuño at Lipa City upon receipt of a report that about 200 Huks were gathered in that place. While climbing the mountain they were suddenly attacked and fired upon by the dissidents killing one soldier and wounding others. When they retaliated, the Huks retreated leaving behind a wounded Huk. The Huks abandoned their hideouts in the place. Upon inspection, Lt. Velasquez found a hut with several blackboards, papers and other school supplies inside and a red hammer-and-sickle flag displayed on the wall with letters "STALIN U" (Stalin University), which indicated that the place is one of the military schools for the Huks. (The flag was produced in court and marked Exhibit "A" for the prosecution. This flag had been identified by a witness for the prosecution, a former Huk Colonel named Benjamin Advincula, to be the official flag of the HMB in their military training school in the mountains wherein he had also undergone Huk military training.) (8) At about midnight on March 29, 1950, Huk dissidents entered the town of Tanauan, Batangas. According to George Collantes, the municipal mayor, there was shooting in the town, and later the industrial center and market were burned after they were raided.

The appellants, in their defense in the present appeals, have raised issues that are common to them all, and also issues particular to each one of them. The issues particular to individual appellants will be discussed at the latter part of this opinion when we deal with their respective appeals. 1. The appellants are charged with having committed the crime of rebellion with murders and arsons. The trial court declared some of them guilty as principals, and some as accomplices, in the commission of the crime of rebellion complexed with multiple murder, arsons and robberies. The law pertinent to the determination of the criminal responsibility of the appellants are Articles 134, 135, and 136 of Revised Penal Code, as follows: . ART 134. Rebellion or insurrection — How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. ART. 135. Penalty for rebellion or insurrection. — Any person who promotes, maintains, or heads a rebellion or insurrection, or who, while holding any public office or employment takes part therein, engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated, shall suffer the penalty of prision mayor and a fine not to exceed 20,000 pesos. Any person merely participating or executing the commands of others in a rebellion shall suffer the penalty of prision mayor in its minimum period.

When the rebellion or insurrection shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the rebels shall be deemed the leader of such rebellion. ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy and proposal to commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and by prision correccional in its medium period and a fine not exceeding 2,000 pesos. It is the common contention of the appellants that the trial court erred in declaring that the crime committed by the appellants was that of "rebellion complexed with multiple murder, arsons, and robberies." We uphold the contention of the appellants. The question, of whether or not a person may be prosecuted and held guilty of the crime of rebellion complexed with murder, arson, robbery and/or other common crimes, is now settled. In the case of People vs. Hernandez, etc., et al., 1 this Court held that the crime of rebellion cannot be complexed with other common crimes. The accused in the Hernandez case were charged, as are appellants in the instant cases, "with the crime of rebellion with multiple murder, arsons, and robberies." This Court ruled that: One of the means by which rebellion may be committed, in the words of said Article 135, is by "engaging in war against the forces of the government" and "committing serious violence" in the prosecution of said "war". These expressions imply everything that war connotes, namely; resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake — except that very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and a passion or ruthlessness seldom found in a contest between strangers. Being within the purview of "engaging in war" and "committing serious violence", said resort to arms, with the resulting impairment or destruction of life and property, constitutes not two or more offenses, but only onecrime — that of rebellion plain and simple. Thus, for instance, it has been held that "the crime of treason may be committed" by executing either a

single or similar intentional overt acts, different or similar but distinct, and for that reason, it may be considered one single continuous offense. (Guinto vs. Veluz, 77 Phil. 801, 44 Off. Gaz., 909.)" (People vs. Pacheco, 93 Phil. 521.). Inasmuch as the acts specified in said Article 135 constitute, we repeat, one single crime, it follows necessarily that said acts offer no occasion for the application of Article 48, which requires therefor the commission of, at least, two crimes. Hence, this court has never in the past, convicted any person of the "complex crime of rebellion with murder". What is more, it appears that in every one of the cases of rebellion published in the Philippine Reports, the defendants were convicted of simple rebellion, although they had killed several persons, sometimes peace officers. (U.S. vs. Lagnason, 3 Phil. 472; U.S. vs. Baldello, 3 Phil. 509; U.S. vs. Ayala, 6 Phil. 151; League vs. People, 73 Phil. 155) xxx

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There is one other reason — and a fundamental one at that — why Article 48 of our Penal Code cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two crimes punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor; and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. In other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48, said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant. Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro:

La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo. (II Doctrina Penal del Tribunal Supremo de España, p. 2168.) ... It is evident to us that the policy of our statutes on rebellion is to consider all acts committed in furtherance thereof — as specified in Article 134 and 135 of the Revised Penal Code — as constituting onlyone crime, punishable with one single penalty — namely, that prescribed in said Article 135. .... ... In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingridients of the crime of rebellion allegedly committed by the said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P20,000; and that, in conformity with the policy of this court in dealing with accused persons amenable to a similar punishment, said defendant may be allowed to bail." The foregoing ruling was adhered to in the decisions of this Court in the cases of People vs. Geronimo, G.R. No. L-8936, October 23, 1956; People vs. Togonon, G.R. No. L-8926, June 29, 1957; People vs. Romagosa, G.R. No. L-8476, February 28, 1958; and People vs. Santos, G.R. No. L-11813, September 17, 1958. In People vs. Geronimo, supra, this Court further elaborated on the Hernandez ruling, as follows: As in treason, where both intent and overt act are necessary, the crime of rebellion is integrated by the coexistence of both the armed uprising for the purposes expressed in Article 134 of the Revised Penal Code, and the overt acts of violence described in the first paragraph of Article 135. That both purpose and overt acts are essential components of one crime, and that without either of them the crime of rebellion legally does not exist is shown by the absence of any penalty attached to Article 134. It follows, therefore, that any or all of the acts described in Article 135, when committed

as a means to or in furtherance of the subversive ends described in Article 134, becomes absorbed in the crime of rebellion, and cannot be regarded or penalized as distinct crimes in themselves. In law they are part and parcel of the rebellion itself, and cannot be considered as giving rise to a separate crime, that, under Article 48 of the Code, would constitute a complex one with that of rebellion. And in People vs. Aquino, et al., L-13789, June 30, 1960, 57 O.G. 9180, this Court said: On the other hand, from the very testimony of Filomeno Casal, another witness for the prosecution, it can be gathered that the one who killed or ordered the killing of Mendoza was Commander Silva who, according to Casal, ordered Mendoza to lie down and when the latter refused he shot him. If we are to believe the testimony of this witness the only one responsible for Mendoza's death is Commander Silva for there is nothing to show that his companions who were under his command knew that his design was to liquidate him. At any rate, since it appears that the killing was committed not because of any personal motive on the part of the accused but merely in pursuance of the huk movement to overthrow the duly constituted authorities, the proper charge against them would be rebellion and not murder .... The reason for this was already given by this Court in People vs. Hernandez, et al., supra, to wit: In short, political crimes are those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippine Islands or any part thereof," then said offense becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter."2 The Solicitor General, in behalf of the appellee, The People of the Philippines, asks this Court to reexamine the ruling in the Hernandez case "based not only on grounds of public policy but also to interpret the law in order to have justice and adequacy into the Philippine law on rebellion on the basis of prevailing jurisprudential schools of thought such as the

sociological theory on the natural law doctrine and ... the policy science theory." 3 This Court has given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what this Court said in that case, as follows: The Court is conscious of the keen interest displayed, and the considerable efforts exerted, by the Executive Department in the apprehension and prosecution of those believed to be guilty of crimes against public order, of the lives lost, and the time and money spent in connection therewith, as well as of the possible implications or repercussions in the security of the State. The careful consideration given to said policy of a coordinate and coequal branch of the Government is reflected in the time consumed, the extensive and intensive research work undertaken, and the many meetings held by the members of the court for the purpose of elucidating on the question under discussion and of settling the same. The role of the judicial department under the Constitution is, however, clear — to settle justiciable controversies by the application of the law. And the latter must be enforced as it is — with all its flaws and defects, not affecting its validity — not as the judges would have it. In other words, the courts must apply the policy of the State as set forth in its laws, regardless of the wisdom thereof. xxx

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Thus the settled policy of our laws on rebellion, since the beginning of the century, has been one of decided leniency, in comparison with the laws in force during the Spanish regime. Such policy has not suffered the slightest alteration. Although the Government has, for the past five or six years, adopted a more vigorous course of action in the apprehension of violators of said law and in their prosecution, the established policy of the State, as regards the punishment of the culprits has remained unchanged since 1932. It is not for us to consider the merits and demerits of such policy. This falls within the province of the policy-making branch of the Government — the Congress of the Philippines ... xxx

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Such evils as may result from the failure of the policy of the law punishing the offense to dovetail with the policy of the law enforcing agencies in the apprehension and prosecution of the offenders are matters which may be brought to the attention of the departments concerned. The judicial branch cannot amend the former in order to suit the latter. The Court cannot indulge in judicial legislation without violating the principles of separation of powers, and, hence, undermining the foundation of our republican system. In short, we cannot accept the theory of the prosecution without causing much bigger harm than that which would allegedly result from the adoption of the opposite view. 2. The appellants also contend that the informations against them charge more than one offense, in violation of Section 12, Rule 106 of the old Rules of Court (now Section 12, Rule 117 of the new Rules of Court). This contention has no merit. A reading of the informations reveals the theory of the prosecution that the accused had committed the complex crime of rebellion with murders, robberies and arsons, enumerating therein eight counts regarding specific acts of murder, robbery and arson. These acts were committed, to quote the information, "to create and spread terrorism in order to facilitate the accomplishment of the aforesaid purpose", that is, to overthrow the Government. The appellants are not charged with the commission of each and every crime specified in the counts as crimes separate and distinct from that of rebellion. The specific acts are alleged merely to complete the narration of facts, thereby specifying the way the crime of rebellion was allegedly committed, and to apprise the defendants of the particular facts intended to be proved as the basis for a finding of conspiracy and/or direct participation in the commission of the crime of rebellion. 4 An information is not duplicitous if it charges several related acts, all of which constitute a single offense, although the acts may in themselves be distinct offenses. 5 Moreover, this Court has held that acts of murder, arson, robbery, physical injuries, etc. are absorbed by, and form part and parcel of, the crime of rebellion if committed as a means to or in furtherance of the rebellion charged. 6 3. Another contention of appellants is that the trial court, the Court of First Instance of Manila, did not have jurisdiction to try the cases against them because the acts enumerated in the eight counts in the information were committed outside the territorial jurisdiction of the court. This contention is also without merit. Section 14 of Rule 110 of the Rules of Court provides that the criminal action shall be instituted and tried in the court of the municipality or province where the offense was committed or any one of the essential ingredients thereof took place. The informations allege that Manila is the seat of the Government of the Republic of the Philippines which the

appellants sought to overthrow and that Manila was chosen by the accused as the nerve center of all their rebellious activities in the different parts of the country. While it is true that the murders, robberies and arsons alleged in the information were committed outside the City of Manila, in the informations it is alleged that it was in Manila where the accused had decided and agreed to commit the crime of rebellion and it was in Manila where they promoted, maintained, caused, directed and/or commanded the HMB to rise publicly and take arms against the Government, as in fact the HMB had risen publicly, making armed raids, sorties, ambushes, and committing wanton acts of murder, arson, looting, etc. An essential ingredient of the crime of which appellants were charged, therefore, took place in Manila. 4. Some of the appellants contend that their constitutional rights were violated because the documentary evidence presented against them were illegally seized or had come from doubtful sources. This claim has no merit. We have carefully examined the record, and We find that search warrants were properly secured by the peace officers before raids were effected and that the documents, articles and effects seized from each place raided were listed, inventoried and marked. It even appears that statements were signed by some of the appellants certifying that the search warrants were executed in an orderly and peaceful manner by the raiding parties. 5. The appellants assail the reconstitution of the exhibits that were destroyed, and claim that the reconstituted exhibits should not be considered in this appeal. We have stated at the earlier part of this opinion that the exhibits (documentary and other articles) were placed in the custody of the Philippine Constabulary because they had to be presented as evidence in the trial of rebellion cases pending in other courts. Most of the originals of the documentary evidence were burned during the fire that gutted the headquarters of the Philippine Constabulary on September 10, 1958. The Solicitor General filed a petition for the reconstitution of the burned exhibits. The petition was given due course by this Court, and the Deputy Clerk of this Court was commissioned to receive the evidence on the reconstitution of the burned documents. The list of reconstituted exhibits is Exhibit CReconstitution. In his report, dated October 6, 1959, the Commissioner recommended the admission of all the reconstituted exhibits. We find that the reconstitution was made in accordance with the provisions of Act 3110, which provides for the procedure in the reconstitution of court records. Section 59 of said act provides that destroyed documentary evidence shall be reconstituted by means of secondary evidence which may be presented to any Justice of the Supreme Court or any other officer commissioned by the Court. Section 14 of the act provides that the destroyed or lost documentary evidence shall be replaced by secondary

evidence. A photostatic copy of an original document is admissible as a secondary evidence of the contents of the originals and they constitute evidence of a satisfactory nature. 7 The record shows that the photostatic copies of the destroyed exhibits, which were presented before the Commissioner during the reconstitution proceedings, were taken before the originals were destroyed by fire. The photostatic copies had been compared with the originals, properly checked and recorded, by the officer who was the custodian of the exhibits. The certified typewritten copies made from the original documents that were hand written in ink are also secondary evidence of the contents of the latter. Sgt. Aquilino Tingco, assigned as assistant to the document officer in charge of the court of exhibits in the rebellion cases, testified that he was the one who furnished the typists the original documents, and after those originals were copied on the typewriter he compared the typewritten copies with the originals, proofread them, stamped them and had them certified as true copies. This witness further testified that before the certified copies were presented in court as evidence said copies were compared with their originals. 8 During the reconstitution proceedings, counsel for appellants objected to the admission of some of the reconstituted documents upon the ground that they were not sufficiently identified. The Commissioner, however, admitted all there constituted documents, and We find that the Commissioner rightly did so. We find that Exhibits R-X-6 to R-P-73-79, the admission of which was objected to, were properly identified. Captain Enrique L. Reyes of the PC, who was entrusted with the custody of the documents, had the list of all the exhibits that were burned, which were inventoried and verified; as well as a list of those exhibits that were presented in these cases, of which photostatic copies had been taken; and when asked where the photostatic copies were, Capt. Reyes said that he had the photostatic copies, and pointed to a bundle of folders containing them. These exhibits were checked and counter-checked with the record of the present cases in the Supreme Court. 9 Sgt. Aquilino Tingco, who brought the exhibits to the different courts where they were presented as evidence, and who personally supervised the taking of the microfilm and the photostatic copies that were presented in the courts in lieu of the originals, when asked to show to the Commissioner the photostats made of the documents which were used the Politburo cases, extracted from a folder a bundle of papers and presented the list of exhibits (Exh. C-Reconstitution) along with photostatic copies of those listed exhibits, and he testified on them. The witness was asked to consult the list of exhibits (Exhibit CReconstitution) and he pointed to the Commissioner the exhibits to be marked according to the list, which the Commissioner himself marked. The

witness testified that the contents of the documents thus marked were the same as those of the originals. The Commissioner considered the documents properly identified and he admitted the documents over the objection of counsel for the appellants, and he recommended to this Court the admission of all of them. This Court approved the report of the Commissioner. We have carefully examined and analyzed these reconstituted exhibits and We believe that they constitute a competent evidence to be considered in arriving at a decision in these cases. 6. The appellants also claim that they were not afforded the time and freedom to prepare for their defense. This claim of appellants is not borne by the record. The record shows, that the trial of these cases took months; all the defendants were represented by counsel, either de officio or de parte, who did their best to defend the appellants during the trial. In fact the defense lawyers were commended by the trial court for their efforts in defense of the appellants. None of the appellants was deprived of his day in court. Everyone was given an opportunity testify and/or adduce evidence in his behalf. All the appellants, except Jose Lava and Nicanor Razon, Sr., testified in court in their own defense. The record does not show that appellant Razon had testified or had presented any evidence in his behalf. Appellant Jose Lava voluntarily refrained from taking the witness stand, but, instead, he presented witnesses who vouched for his good moral character and exemplary conduct as a citizen. We find no merit in the claim that the appellants were not afforded ample time and opportunity to prepare for their defense. Having thus resolved the common issues raised by the appellants, We now proceed to determine the criminal responsibility, if any, of the individual appellants. The lower court found some of the appellants guilty as principals, and some as accomplices, in the commission of the complex crime of rebellion with multiple murder, arsons and robberies. We have already declared in this opinion that the crime of rebellion cannot be complexed with murder, robbery and other common crimes. Our task, therefore, is to determine the degree of responsibility of each of the appellants in the commission of the crime of simple rebellion as defined and penalized under the provisions of Articles 134, 135 and 136 of the Revised Penal Code. 1. The appeal of Jose Lava

Upon a careful study of the evidence, We find: That appellant Jose Lava was known under these aliases: Harry, Felix Cruz, Gaston, Gaston Silayan, Greg, Gregorio Santayana and Gavino. Jose Lava became a member of the Communist Party of the Philippines during the Japanese occupation. In a self-appraisal which he wrote, and published in mimeograph form with the approval of the Secretariat, he stated that although he was a new Party member he had been entrusted with responsible positions in the Party and that due to his high sense of responsibility and initiative he could rank with the best in the party. Lava was not only, a confirmed communist; he was a ranking leader of the CPP, being a member of the Central Committee (CC) of the CPP and he participated in the Politburo meetings. In the Politburo conference in Manila in January 1947 he proposed armed struggle to overthrow the Government. His participation therein was described in Exhibit O-228-229, as follows: ... There was an attempt in the conference to give it a character of a CC conference notwithstanding the fact that there were only eleven CC members, out of thirty-five, present in the conference. There was also an attempt to isolate some CC members who were easily available, as evidenced by the noninvitation of Coms VY, Harry and Pacing known for their views in support of the Nacionalista-Democratic Alliance coalition, and for an early resumption of the armed struggle. It was only later in the conference, when their absence was noted by certain comrades, that Com Harry was invited to the conference .... Com Harry proposed that the conference declare that armed struggle be the main form of struggle .... Other documents show that Jose Lava had been attending meetings of the Secretariat (SEC) since October, 1949. He signed, under the alias "Gaston Silayan", the Secretariat's transmission to the Politburo members in the field, under date of October 22, 1949. He issued under different aliases, for and in behalf of the Secretariat, Secretariat transmissions up to October 14, 1950. He signed as "Gaston" the Secretariat's transmission dated December 24, 1949; he signed as "Greg" those of July 22, 1950, of September 23, 1950, of September 30, 1950, of October 7, 1950, and of October 14, 1950; and signed as "Gavino" the transmission dated September 25, 1950.

Jose Lava's membership in the Secretariat of the CPP is shown in various documents (Exh. C-1313 and Exhs. O-269-270). In another exhibit, N-1015-1017, Kas. Gaston was addressed as the General Secretary. As member of the SEC, and as General Secretary, Jose Lava attended SEC meetings and transmitted the decisions of the SEC to the comrades of the Politburo in the regional commands. His direct participation in the meetings of the SEC was mentioned in several SEC transmissions. In one such transmission he (Gaston) advocated the overthrow of the corrupt Liberal Party administration because of the wholesale fraud and terrorism during the elections of 1949. In the meeting of May 5, 1950, he (Gaston) disagreed with Eto (Federico Maclang) and Johnny (Ramon Espiritu) on the way of giving money to deserving families, saying that: Even if we have a million pesos now, we still would need same to buy arms and ammo, decisively improve our propaganda to spread our influence over all the country, improve the diet of our fighting soldiers to increase their fighting efficiency, all with a view to hastening the people's victory and end their suffering earlier. (Exh. O-91, par. 2) In the SEC meeting of September 29, 1950 "Greg" (Jose Lava) dissented from the majority decision rejecting the proposal that Boris (Angel Baking) be allowed to attend the Military Committee (MC) meeting. (Exh. O339, par. 15). Apart from his routinary duties as General Secretary, other duties were assigned to Jose Lava under hisaliases. Thus, as "Gaston", he was designated in the SEC's meeting of December 20, 1949 to take care of the editorial of the "TITIS", the official organ of the Communist Party; he was given supervision over women matters, and over political and educational matters, in the meetings of February 15, 1950 and April 14, 1950. "Gaston" was also in charge of Direct Party Propaganda, Curriculum and Analysis. As "Greg", he was appointed by the SEC as one of the 15 members of the Military Committee (MC). He was to supervise, as decided in the SEC meeting of April 14, 1950, the newly organized Technological Group. He was instructed by the SEC, in its meeting of September 15, 1950, to prepare a draft of the resolution for discussion before the Military Committee. In the meeting of the SEC on September 22, 1950, he was given power to review all the minutes and decisions of the National Education Commission (NEC) and only matters which he did not approve were to be taken up by the Secretariat.

Jose Lava also attended and presided at meetings of the Communists and the HMB in his house in Tejeron, Makati. 10 Jose Lava was the author of many articles and/or writings, among them: "Self-Appraisal by Gregorio Santayana," a handwritten outline; "Struggle against Awaitism, by Gregorio Santayana", also a handwritten outline, with a typewritten copy; "Outline of Strategy and Tactics"; "Strategy and Tactics"; "Twenty Years of Struggle of the CPP"; "Outline on Milestones in the History of the CPP"; "Milestones in the History of the CPP", which is a part of the curriculum in the secondary course of the schools conducted by the CPP. The "Outline on Strategy and Tactics" and "Strategy and Tactics" were also in the secondary curriculum texts of the CPP. He is also the author of "Finance Opportunism, Its Basic Causes and Remedies", a portion of which reads: . ... There is no question that we cannot drastically eradicate finance opportunism within the Party and the National liberation movement it is leading, and thereby hasten the maturity of the revolutionary crisis and prepare the Party to create a clear and honest body of administrators and state functionaries and thereby maintain the power of the NEW DEMOCRACY that we are set to establish. Another work of Jose Lava is "Accounting of the People's Funds Received and Spent to Finance the Revolutions", a portion of which reads as follows: The Communist Party of the Philippines is leading the armed struggle for national liberation and the establishment of a New Democracy in order to crush the power of the exploiters, achieve power for the exploited classes and exercise such power for their benefit, and for those who are disposed to accept the new society .... Jose Lava also wrote other documents, among them his handwritten notes containing the territorial extent of Recos 1 to 7, and a plan of attack on the November 7, 1950 celebration; a list containing several persons (aliases) assigned to Recos 1 to 7 and to the Military, Pol-Ed, organizational and GHQ organs; a letter to Eto (Federico Maclang) on the reverse of a list containing names of Malaca_¤_an special agents. He also wrote letters to Party members concerning the activities of the Party and/or HMB — unmistakably indicating conspiracy or connection between him and other top HMB and CPP leaders in the field. Thus, "Gaston" (Lava) wrote a letter to Leo

(Cesareo Torres) informing the latter that the stencils for "Ang Komunista" were already sent by NED-Out and that if Leo needed funds, he could ask from the NFC. In a letter of September 4, 1950 to Eto (Federico Maclang), "Gaston" (Lava) transmitted to Maclang three letters, on the reverse side of one which was a note of O. Beria (Maclang) asking who the writers were. In his letter of September 26, 1950 "Gaston" advised Eto (Maclang) to circularize all Recos about the conference of the RECO-Ed and G-3 before October 15. In his letter of September 12, Gaston asked the addressee Johnny (Ramon Espiritu) about the latter's self-appraisal, the Hospital Group, and the selection of two additional members to help Luming (Iluminada Calonje or Salome Cruz). The foregoing findings of this Court are based mainly on documents presented as evidence during the trial. Those documents were taken: some from the third floor of the Mayflower Apartments, at Estrada and Pennsylvania Streets in Manila, which was then rented by appellant Lava when it was raided by peace officers on June 23, 1950; and the other documents from the different places that were raided by the MIS agents and the Manila Police on October 18, 1950, where most of the accused in these five cases were arrested. One of the places raided on October 18, 1950 was 683 Pasaje Rosario, Paco, Manila, where appellant Lava was arrested along with his co-accused Federico Bautista, Simeon Rodriguez, Victorina G. Rodriguez and Pedro Vicencio. Numerous documents, books, and articles were seized at that place where Lava was arrested, and those documents were used as evidence during the trial of these five cases in the court below. Some of the documents thus seized, and which were presented as evidence, were in appellant Lava's handwriting, or were signed by him using his alias names. This is clearly established by the testimony of a handwriting expert that was presented by the prosecution. The conclusion of the handwriting expert was based on the specimens of Lava's handwriting which were used as standards in comparing with the handwriting and/or signature (in alias) of the appellant that appear in the documents that were presented as evidence against him. It is contended by appellant's counsel that no genuine specimen of Lava's handwriting was presented as standard for comparison. We do not see merit in this contention. We find that the standards for comparison that were used were the documents marked Exhibits FF-1 and FF-2. 11 Exhibit FF-1 is an application for employment signed by Jose Lava. The signature thereon was testified to by witness Eduardo Romualdez (now Secretary of Finance) as looking "like the signature of Jose Lava." Eduardo Romualdez was acquainted with the handwriting of Jose Lava, having received reports (Exh. FF), parts of which were in the handwriting of Jose Lava "not less than three or four times" while Jose lava, was a bank examiner. 12 Exhibit FF-2 is a cardboard containing a

list of books requested by Jose Lava while the latter was detained in Bilibid Prison. Buenaventura Villanueva, to whom the list was given, testified that he saw Lava writing the list on the cardboard. What appears on Exhibit FF-2 is certainly a genuine specimen of Lava's handwriting. The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, and has seen the person write. Evidence respecting the handwriting may also be given by comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. 13 The handwriting expert who made the comparison in this case positively identified the handwriting of Jose Lava on the documents presented as evidence against said appellant, specially the handwritten names of Gregorio Santayana, Gaston, Gaston Silayan, Gavino and Greg. 14 Appellant Jose Lava did not take the witness stand to testify in his own behalf. Instead, he presented witnesses to testify on his good moral character, his strong convictions and his good citizenship. An accused, however, is not entitled to an acquittal simply because of his previous good moral character and exemplary conduct. When a court believes that an accused is guilty beyond reasonable doubt of the crime charged, it must convict him notwithstanding evidence of his good moral character and previous exemplary conduct. 15 We find that the evidence adduced during the trial has proved beyond reasonable doubt that appellant Jose Lava was one of the top leaders of the CCP, and that he was not only working to propagate the doctrine of communism in the Philippines but was actually promoting an armed uprising against the Government. He did not actually take to the field and participate in the armed attacks against constituted authorities, but in the positions that he held in the CCP, he actually promoted, maintained, and even directed the armed activities of the HMB which were aimed at overthrowing the Government and implanting a new system of government in the Philippines. As General Secretary of the CCP he signed, in his aliases, the communications or transmissions of the Secretariat to the HMB and CCP leaders in the field. As We have stated in this opinion, there was a tie-up between the CCP and the HMB, and that the HMB was the military arm of the CCP. The CCP went underground sometime in November 1949. It was precisely during the latter part of 1949 and during the year 1950 (before the arrests of the accused in these five cases on October 18, 1950) when the HMB was most active in its armed operations against the Government — or against the elements of the Army, the PC and the Police, and against public officials and even against civilians. The evidence against appellant Lava

shows that it was in 1949 and 1950 when he, in his capacity as one of the top leaders of the CPP, actively participated in the armed struggle being carried on by the HMB by sending directives and other communications to the leaders of the HMB and to the heads of the regional commands of the CPP who were operating in the field. He was, in fact, one of the leaders of the rebellion. He planned the attack for the November 7, (1950) anniversary celebration, which was to include the capture of towns near Manila and the liquidation of enemies in the City by the different regional commands. We agree with the finding of the lower court that appellant Jose Lava is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly. 2. Appeal of Federico Bautista We find it conclusively shown by the evidence that: Appellant Federico Bautista had used, or was known under, the aliases: F. Payat, Fred, Freddie, and Freding. He was arrested by the MIS agents and the police on October 18, 1950 at 683 Pasaje Rosario, Paco, Manila, along with his co-accused Jose Lava, Simeon Rodriguez, Victorina G. Rodriguez and Pedro Vicencio. He joined the CPP on August 8, 1949. Testifying in his own behalf, he said that he joined the CPP because of the failure of the administration then to carry out the terms of the Amnesty Proclamation which he helped to bring about; and also because, of the ouster of six members of Congress from the central Luzon provinces who were elected in the 1946 elections, of the frauds and terrorism committed in subsequent elections and the graft and corruption in the government. He was a member of the National Finance Committee of the CPP, 16 of which committee Ramon Espiritu (co-accused) was the chairman, and Simeon Rodriguez (co-accused) was a ranking member. As such member of the National Finance Committee part of his duties and responsibilities was the procurement of supplies, such as arms, ammunitions, medicine, office supplies, clothing, etc., for the dissidents' (both of the CPP and of the HMB) organizations in the field. He became a member of the Military Committee of the CPP, with special assignment as Chief of Intelligence, GHQ. 17 He was also assigned to, and exercised authority over, the armed forces (AF [HMB]) in Manila and suburbs, which was called the City Command. He also had supervisory powers over the National Courier Division. 18 This appellant did not actually take to the field and participated in the armed operations of the HMB, but he did staff work which to promote,

maintain and direct the operations of the HMB. Thus, there was presented in evidence a letter 19 written by this appellant to Leo (co-accused Cesareo Torres), under date of July 10, 1950, transmitting the latest party decision regarding authorized daily subsistence allowance of personnel of the CPP organs, ranging from P1.00 to P1.20. Cesareo Torres is the head of the Technical Office in charge of propaganda. In a handwritten tabulation prepared by him, 20 which was sort of a financial statement, there is shown an amount spent for communications and for intelligence. It appears that of the total income of P8,006.80 for April, May and June 1950, 20% was allotted for ammunitions and 10% for intelligence. This financial statement, as finally published, was certified to by Johnny (co-accused Ramon Espiritu) as head of the National Finance Committee, and audited and approved by Tommy (co-accused Honofre Mangila). This document once more indicates clearly that the HMB was being supported by the CPP. There is a document labelled "Memorandum on Intelligence", 21 a typewritten draft, which was shown to bear the pencil handwritten insertions and corrections made by appellant Federico Bautista, indicating that this draft was prepared by him. Portion of this document reads: Without deviating from the general orientation of expanding evenly along the four branches of intelligence, viz.: Political, economic, cultural and military, the emphasis for the present is on military intelligence both strategic and tactical. This is in conformity with and in direct pursuance of the Party's program of "all for expansion and the armed struggle." The mechanics of wresting power will eventually be a military struggle, we must have a continual basis by which we can estimate what the enemy intends to do and the tenacity with which they will implement these intentions singly and collectively. Appellant Federico Bautista was identified with the high councils of the CPP. He attended Politburo conferences. 22 Along with Ramon Espiritu and one Nicasio Pamintuan, he sat to try, and found guilty, one Domingo Clarin, a member of the HMB Trigger Squad, who was charged with having squealed regarding the hold-up of the Naric in Pulilan. Appellant Federico Bautista had previously assigned Clarin to guard Jose Lava. 23 We have carefully studied the evidence for the prosecution and defense, as well as the argument of the counsel in the appellant's brief, and We believe that it is proved beyond reasonable doubt that appellant Federico Bautista is one of the leaders of the rebellion jointly undertaken by the CPP and HMB. We agree with the finding of the lower court that this

appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly. 3. Appeal of Federico Maclang Appellant Federico Maclang was arrested on October 18, 1950 by agents of the MIS and the Manila Police at 1938 Interior 7, Felix Huertas, Manila, along with Julita Rodriguez and Felipe Engreso — the latter two being among those convicted by the lower court in these five cases, but Julita Rodriguez withdrew her appeal. He used the aliases: O. Beria, Eto, Olibas, Manuel Santos, Manuel Santa Fe and Ambrosia Reyes. The evidence conclusively shows that this appellant is a ranking communist, and he was responsible for the organization of the CPP in Manila and Rizal. He issued directives, plans and instructions to the different units of the CPP in the field that were working in close collaboration with the HMB in the latter's armed operations. By his own testimony he revealed that he is a confirmed communist. He declared that he was one of the organizers of the PKM (a peasants' organization) in Luzon, that he became a communist after studying thoroughly the principles of communism in relation to the economic and political conditions of the country; that he believes in the overthrow of "imperialism" and the establishment of a "new democracy" in the Philippines. It is shown by the evidence that: Appellant Maclang joined the CPP sometime in 1939; and he was a member of the Politburo from 1944 up to the time of his arrest on October 18, 1950. 24 In the document labelled "Pagtuya sa Sarile", shown to have been written by him, 25 it appears that he was the Chief of the Organizational Bureau (OB) of the CPP from 1948 until the time of his arrest, and that as an organizer he was responsible for the organization of the Regional Commands (Recos) of the party. He was also one of the members of the Secretariat, and as such he actively participated in the deliberations and decisions of the body. In several letters of Enteng (Luis Taruc) to him, which were identified during the trial, as well as in his letter to Enteng, a copy of which was found in his possession and was identified by him, 26 his membership in the Secretariat is clearly shown. As a member of the Secretariat he was

assigned the supervision on all organizational matters, on the youth problems and activities, and also on military affairs. Likewise, he was assigned supervision over the Trade Union Division (TUD) and the trade union struggle; also he had supervision over the news section of the TITIS; and he was authorized by the Secretariat to review the decisions of the Regional Command (RECO) and, like appellant Jose Lava, only those decisions which he did not approve were taken up by the Secretariat. 27As chief of the Organizational Bureau he issued, or approved the issuance of, circulars, plans, and directives to the different organs of the CPP. 28 This appellant prepared the document entitled "Impiltrasyon". 29 In this document he discussed the problems of infiltration and the methods or techniques to be followed by party members in infiltrating government offices, the armed forces, and the ranks of anti-communist groups, in connection with the underground work of the CPP and the HMB. He also prepared "Pakikibaka sa Pagani" 30 where he urged the peasants to fight for bigger crop shares, and the workers to fight for better wages, pointing out that the government cannot meet the demands of the working class so that the only alternative is to support the "People's Liberation Movement" and effect changes through armed struggle. He wrote the "Pangatawanan ang Kampanya sa Pagpalawak ng Ating Patanim at Pagpalitaw sa Inuhi". 31 where he states the policy of the CPP regarding the expansion of the production areas and the production of more crops to maintain and support the revolution and to prepare the masses for self-government. Likewise, he wrote the "Ang Kompiskasyon", a circular issued by the Organizational Bureau (OB), of which he was the head, to all the organizational units of the CPP, explaining the Party's theory of confiscation. This circular authorizes confiscation as a means to raise revenue for the "People's Liberation Movement". This circular lists the classes of individuals who are considered enemies of the revolution and whose properties may be confiscated. 32 When this appellant was arrested on October 18, 1950, there were found in his possession documents which indubitably show the high positions that he occupied in the CPP and the direct connections that he had with the operations of the HMB. Thus, there is Exhibit N-52, which is a partial report of Reco 2 regarding military operations during the "Cry of Balintawak" celebration. In this report are stated the simultaneous HMB attacks at Camp Makabulos, Tarlac, and at Arayat in the evening of August 25, 1950. There are also Exhibits N-56-57 which are the reports from Reco 2 of the HMB attacks at barrio Capalad, Arayat on September 12, 1950, and at San Luis on September 13, 1950. There was found in his possession, when he was arrested, a file copy (Exh. N-202) of a letter addressed to his comrades in

Regional Command No. 4, dated October 14, 1950. The original of this letter (Exh. M-292) was found at 1608-B Andalucia, apparently in transit through the National Courier Division. It should be noted that it is in 1608-B Andalucia where Salome Cruz, the Chairman of the National Courier Division, had her headquarters. In this letter appellant Maclang wrote: I received a letter to the SEC from Com Bonifacio, PBS, R-5, dated Oct. 10, 1950. Because of the urgency and because the Comca is leaving at 12:00 a.m. this day, I, as in charge of military matters of the SEC, in the absence of the SEC meeting I have rendered the following decision: xxx

xxx

xxx

ORDER: I hereby order to R-4 to take all action concerning all the requests of the letter of Com. Bonifacio to the SEC. Reject the idea of sending back these deserters (men and officers) to R-5 and I am giving full authority to R-4 to arrest and try all these said deserters. All actions should be based on our military rulings. The letter of Comrade Bonifacio referred to in the above-quoted letter of appellant Maclang was found in his possession at the time of his arrest. A copy of this letter was found in the possession of the appellant Jose Lava when the latter was arrested at 683 Pasaje Rosario, Paco, Manila, on October 18, 1950. 33 It was shown during the trial that this letter of appellant Maclang was transcribed from the stenographic notes taken down by Julita Rodriguez on her notebook (Exh. M-31-E). This Julita Rodriguez worked as a clerk with appellant-Maclang, and she was also arrested on October 18, 1950 along with Maclang and Felipe Engreso, another employee of Maclang. Both Julita Rodriguez and Felipe Engreso were also accused in these cases. The authority of appellant Maclang on military matters is made manifest in the above-mentioned letter. In another letter of appellant Maclang, which was his reply to the letter he received from one Plaridel, regarding the plan for attack on November 7, 1950 celebration, 34 he said: Re-celebration, I am glad that you are actively preparing to achieve the SEC objectives. We have no objections on the towns that you have stated including Mcy. Our only doubt here is Mrqn, because this is very near enemy camp, however, proceed to your preparation and we will help you on intelligence operations on said localities. In this connection, we have the opinion that Com. Pacing

will cooperate with you in this task as we have been informed that he is coming to your place. Re-request on arms and ammos, we are not yet in a position to give you the assurance of aid, however, we are dealing with the smugglers to purchase these ammos to supply such operations. Because it is not very sure, it will be better for the Recos to cooperate on the preparation of ammos. There are letters of appellant Maclang to Luming (Salome Cruz), one of the accused, which were presented in evidence, where he gave her orders and instructions regarding the dispatch of couriers to the regional commands and the activities of the National Courier Division. 35 Documents were also presented, which appear to have been issued or approved by the Organizational Bureau of which this appellant was the chief, dealing with the methods of improving the communication system of the CPP. 36 All these indicate that appellant Maclang had also supervision over the National Courier Division (NCD) of the CPP. Appellant Maclang, in his defense, denied knowledge about the HMB raids and ambushes. We find, however, overwhelming evidence that disproves his claim. The evidence clearly shows that he participated directly in planning, coordinating, supporting, and approving the HMB raids, attacks and ambushes. He was a member of the Secretariat of the CPP and participated in its meetings. He was in charge of the military affairs of the CPP; he gave orders to the Recos to attack the government forces; he approved the plans of attack against the City of Manila and towns around Manila on November 7, 1959; he received reports of HMB raids and attacks. All these make him, in contemplation of law, a leader of the rebellion. There is, to Us, no doubt that by the high positions he held in the CPP, appellant Federico Maclang was one of the leaders of the CPP that promoted, maintained and directed the armed operations of the HMB to overthrow the Philippine government. We agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly. 4. Appeal of Ramon Espiritu Appellant Ramon Espiritu was arrested by the agents of the MIS and the Manila Police on October 18, 1950 at 1608-B Andalucia Street, Manila, along with Salome Cruz, Rosario Vda. de Santos, Naty Cruz, Aurora Garcia,

Lamberto Magboo and Josefina Adelan. He was known by the alias "Johnny". In his written statement, 37 he admitted that he was a member of the Politburo and the Chairman of the National Finance Committee of the CPP. The evidence shows that he was a member of the Secretariat of the CPP, and he participated in the deliberations and decisions of that body. 38 He was also one of the 15 members of the Military Committee (MC). 39 He was the Politburo and Secretariat Supervisor of the National Courier Division. 40 He had been assigned to various important positions in the CPP, like the supervision of Trade Union Division (TUD) and the trade union struggle, together with his co-accused Federico R. Maclang. 41 He was also assigned to the City Committee to reorganize the City Committee and the City Command. 42 He was likewise assigned to supervise Luming (co-accused Salome Cruz) in taking care of the sick comrades coming from provinces. 43 He attended meetings of the Communists and HMB. He was one of those who tried Huk member Domingo Clarin, assigned to the Trigger Squad of the HMB, and found him guilty of having squealed regarding the holdup of the NARIC at Pulilan. 44 In his defense appellant Espiritu testified that he had nothing to do with the HMB raids and ambushes. Seemingly, to justify his membership in the Communist Party, this appellant discussed the general history of labor and its unsavory relations with capital, for which he blamed the feudal economy that had pervaded the economic life of the Filipino people. He candidly recounted his efforts in trying to understand the cause of the people's economic ills, and the efforts of labor unions in demanding better wages and living conditions for laborers. Considering the tie-up between the CPP and the HMB, there can hardly be any question that appellant Ramon Espiritu, member of the Politburo, of the Secretariat, and of the Military Committee, of the CPP, had actively participated in promoting and maintaining the armed operations of the HMB, along with top CPP leaders, Jose Lava, Federico Bautista, Federico Maclang, and others. We agree, also, with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly. 5. Appeal of Salome Cruz Appellant Salome Cruz, wife of appellant Ramon Espiritu, was arrested on October 18, 1950 at 1608-B, Andalucia St., Manila. She was known by her two aliases: Luming, and Iluminada Calonje in her written

statement, she admitted that she was the Chairman of the National Communication Division (NCD) of the CPP from November, 1949 to May, 1950. 45 Documentary evidence shows her various positions in the CPP, namely: Acting Chief of the Central Post of the Communications Division and in charge of Sub-Posts; In-charge of Couriers; In-charge of finance from November, 1949 to May 17, 1950; In-charge of all Central Committee cadres when they came to Manila for medical attention; In-charge of sick comrades coming from provinces under the supervision of Johnny (Ramon Espiritu) in the National Commission; and Chairman of the Hospital Group to take care of the sick and wounded from the City and provinces. 46 The evidence further shows that Salome Cruz wrote several notes and/or documents showing her activities in the National Communication Division, Hospital Group and other party organs. Thus, on July 4, 1950, she made handwritten notes on " Sub-Posts" containing names (aliases) of regular and irregular couriers of RECO 1 to 7, Dist. No. 5 and Pangasinan; on July 5, 1950, she also made notes on "Regular na Dating at alis ng mga Korriers sa NCD napunta sa bawat Recos", which show the dates of arrivals and departures of the couriers for Recos 1 to 7 Dist. No. 4 Pangasinan and Cavite; on May 5, 1950 she wrote a letter to Johnny (Ramon Espiritu) informing the latter of the arrival and departure of couriers of RECO 1 and the availability for distribution of the April 12 and 30 issues of TITIS; she also wrote letters to Beria (co-accused Federico Maclang), Payat and Fred (coaccused Federico Bautista), and Berting (co-accused Lamberto Magboo), regarding couriers and the activities of the National Communication Division (NCD). 47 She also made handwritten notes on the National Communication Division (NCD) Consolidated Report, showing the income and expenses from May 1 to May 17, 1950 of the Central Post and the Outposts; and a letter to Charing (co-accused Rosario C. Vda. de Santos) on May 17, 1950 instructing the latter to check up the Sub-Posts. 48 In her brief, appellant Salome Cruz claimed, among other things, that the trial court erred in convicting her as principal, despite the fact that her participation was only on inconsequential details, and her guilt had not been established beyond reasonable doubt. There is no evidence to show that appellant Salome Cruz actually took part in the raids, attacks and ambushes perpetrated by the HMB. It cannot be said, however, that her role in the plan to overthrow the Government was inconsequential, she having been in charge of communications, transmitting orders and directives of the Politburo and Secretariat to the HMB in the field

until May 1950; she being in charge of couriers, making notes of regular and irregular couriers, their arrivals and departures; she being in charge of the Hospital group to take care of the sick and wounded from the city and provinces. These facts show that she was cooperating actively in promoting and maintaining the armed activities of the HMB, considering the tie-up between the CPP and the HMB. The maintenance of communications between the top leaders of the CPP and the units operating in the field is very essential in the success of the rebellion. It is in this connection that this appellant played a very important role.

(a) Reco 1, means of communication still good and 2 couriers arrived June 25 and departed July 4.

We agree with the finding of the lower court that appellant Salome Cruz is guilty as principal in the commission of the crime of rebellion, and she should be punished accordingly.

(d) Reco 4 — The road is difficult connection severed but D-4 is already connected. (Exh. 159-162).

6. Appeal of Rosario C. Vda. de Santos Appellant Rosario C. Vda. de Santos was arrested by the agents of the MIS and the Manila Police, together with co-accused Ramon Espiritu, Salome Cruz, Naty Cruz, Aurora Garcia, Lamberto Magboo, and Josefina Adelan, in these five cases, at 1608-B Andalucia, Sampaloc, Manila, on October 18, 1950. The evidence shows that: Appellant Rosario C. Vda. de Santos uses the alias "Charing". In her testimony, however, she claims that her real name is Aurelia Cayetano. She was designated by the Secretariat of the CPP In-charge of Outpost of the National Communication Division, with the duty to maintain discipline among couriers coming from without. 49 She worked under Salome Cruz (Luming) who was the Chairman of the National Communications Division (NCD) of the CPP. This appellant was in charge of checking the irregular couriers for Regional Commands, 1, 2, 3, 4, 5 and Pangasinan. 50 She was a staff member of the NCD, and she participated in the NCD meetings, took down minutes, and rendered reports. She made reports to the head of the NCD. One such report says: 51 Naisasagawang maayos na pagtanggap sa lahat ng dumating at maayos na pagalis ng couriers. Another report was that one she made on July 12, 1950, about the outpost: 52

(b) Reco 2, — The road is still clear and the couriers of Pangasinan were already established there, thru Com. Piping. (c) Reco 3 — The road is difficult that is the reason why the Post at San Jose is no longer used but that of San Rafael.

As chief of the Outpost, she made, on August 19, 1950, the following report: 53 (a) Reco 1 — Couriers did not arrive, so no report. (b) Reco 2 — Couriers arrived as the PC are out daily in the field .... (c) Reco 3 — Road is also difficult. (d) Reco 4 — Road is not difficult, but no definite Post for the couriers. (e) District No. 4 — 2 weeks no arrival of couriers but special couriers in Com. Amat (now under arrest) arrived on 12 July '50. (f) Cavite — Did not arrive last Sunday while the agreement was Saturday. In a letter to her co-accused Luming (Salome Cruz), she stated that she knew the circumstances surrounding the killing, and the murderers of Norberto Icasiano, Mayor of Bulacan. 54 She even mentioned that she met the deceased's brother in a school house in Malolos, Bulacan, and that she had to hide her face behind her umbrella in order to avoid being recognized. Various documents were shown during the trial which were written by her, and that they were written during meetings of the leaders of the CPP. 55

In her defense, this appellant testified that her co-accused Ramon Espiritu requested her to stay with him as a household help with a salary of P10.00 a month; that besides preparing food, she was also assigned the duty of recording the letters delivered to and received at that place; that her real name is Aurelia Cayetano, but she was using the name of Rosario C. Vda. de Santos because she was a wanted woman by the Japanese during the occupation for having aided the guerillas, and she was known by that name among her friends even after the liberation. She admitted that the name "Charing" was hers, but claimed that she did not know the persons writing to her and that they were writing to her because she was the one always in the house. We find it proven that this appellant was a staff member of the National Courier (or Communication) Division of the CPP, and that she checked and made reports on the arrival and dispatch of couriers. The lower court declared her guilty as principal in the commission of the crime of rebellion. In Our appraisal of the evidence, however, We find that she was merely executing the orders or commands of others who are superior to her in the organizational set-up of the CPP. Considering that her activities took place while the CPP was underground, and during the period when the armed operations of the HMB were taking place, We find her guilty as a mere participant in the commission of the crime of rebellion under the second paragraph of Article 135 of the Revised Penal Code, and should be punished accordingly. 7. Appeal of Angel Baking Appellant Angel Baking was arrested by the agents of the MIS and of the Manila Police in his office at Room 504 Samanillo Building, Escolta, Manila, on October 19, 1950, along with Marciano de Leon who is also one of the accused in these cases. His house at No. 1518 Calixto Dayco, Paco, Manila, was also raided. From his office and his residence many books, documents, and other papers were seized, which proved that this appellant was a confirmed communist and was having close connections with leaders of the CPP. Some of the books found in his residence are: "The Third Five Year Plan" by V. Molotov; "Reminiscence of Lenin" by C. Zetkin; Marx and Engels (Selected correspondence); "Heroic Lenin-grad"; "Theory of the Agrarian Question (Lenin); "Stalin" (G. I. R., James; "Constitution of the Kirghis Soviet Socialist Republic"; "The Class Struggle in France"; "Biographical Compilation of Communist Leaders outside the Soviet Unions", etc. There are also found reading materials labelled: "Comparative Outlines of Communism and Capitalism showing advantages of communistic ideology"; "Blue Record containing outline of the Taruc story" (this contains draft of Taruc story for filming and publication); "Political Economy"

(typewritten — this was shown to be used as text for HMB studies); "Stalin and the National Colonial Question" by John Blake; etc. We find, by the evidence, that: Appellant Angel Baking used the aliases: Bayan, B. and Boriz. He joined the communist party in April, 1949, although he had been identified with the leaders of the CPP since the early part of 1944. 56 He had been associated with top communists like Jorge Frianeza, Luis Taruc, Federico Bautista, Simeon Rodriguez and Jose Lava. When the Technological Group (TG) of the CPP was organized, it was placed under the immediate supervision of Boriz (Angel Baking) although the final supervision was under Greg (Jose Lava). 57 In the meeting of the Secretariat of the CPP on September 29, 1950, the attendance of Boriz in the meeting of the Military Committee was discussed, and it appears in the record: "Com. Boriz is a competent technologist, is ready to go out and ready to stay in the field as the Party decides." 58 The Secretariat of the CPP assigned him to head the Special Warfare Division under the GHQ. 59 As head of the Special Warfare Division under the GHQ, appellant Angel Baking wrote a memorandum for the Secretariat regarding the immediate installation of a wireless communication system between the GHQ and the Secretariat. Some paragraphs of the memorandum read as follows: Briefly the main point to be dealt with pertains to equipment, its procurement, technical description, distribution, installation, operation and maintenance; technical personnel who will participate in the solution of the technical aspects of the problems; the Code system, which is an integral part of the WCS; and the non-technical implications of the problems. Because of the underground nature of the system, several problems not met in the legal installation of this system creep to the surface. The equipment itself is conditioned by abnormal factors which are not met ordinarily; the personnel is difficult to enlist; and the installation, operation and maintenance of the system become unduly handicapped and difficult to perform. Since the transmitting unit in Manila cannot be fully used without risking its immediate detection by the enemy, transmissions to the field from HQ (Manila) may partly be coursed thru the legitimate radio stations. This has always been done before, and

there is no reason why it cannot be developed now. The essential requirements for this measure would be: (1) A cadre to infiltrate the Corps of broadcasters in the radio stations, which may be assigned to the Cultural Group. This cadre should get a position as broadcaster at specific hours, either as station announcer or newscaster for the newspaper or time buyers at the stations; (2) This cadre should be given a code system thru which whatever message to be transmitted, may be coursed.60 Appellant Baking admitted having prepared the foregoing draft but he claimed, in his testimony, that draft was prepared way back in May 1948 at the request of one Jorge Frianesa who was a ranking member of the CCP. It appears, however, that when his office in the Samanillo building was raided by the agents of the MIS and the Manila Police this document was found torn inside a waste basket, and this circumstance made the lower court conclude that he wrote the draft not in 1948 but shortly before the raid on October 19, 1950. The lower court further pointed out that his explanation was filmsy because of the numerous evidence which showed that he supervised the Technological Group and the Special Warfare Division at the GHQ of the CCP. We agree with the conclusions of the lower court in this respect. Besides there were found in his office at Room 504 Samanillo Building at the time of the raid several U.S. Army technical manuals on Cipher Systems and Advanced Military Cryptography, and these manuals have connection with the recommendation in his memorandum for the use of the code system for transmitting messages thru legitimate radio stations. There are still other documents which clearly indicate appellant Baking's cooperation with the leaders of the CCP in the furtherance of the plan to seize power. In the document, marked Exhibit L-33s, he made the following statement: To forestall errors in the planning for the future, the training of leading Cadres as economists should be intensified. It is more than likely that by the time CCP

seized power, the struggle in Asia shall have been resolved. There was found in the possession of Simeon G. Rodriguez (one of the appellants in these cases), the document marked Exhibit O-254 where it appears that appellant Angel Baking acknowledged having received from the National Finance Committee of the CCP the sum of P45.00 for the Technological Group (TG) of which he was a member. Simeon G. Rodriguez is a member of the National Finance Committee of the CCP. At the time of his arrest, appellant Angel Baking was a foreign affairs officer in the Department of Foreign Affairs of the Republic of the Philippines. That he was using his position in the Department of Foreign Affairs for intelligence work — and the lower court calls this a manifestation of his "scheming mind" — may be gathered from what he wrote in his diary as follows: There was a tactical error in my transfer to the new office room. The office was supposed to be occupied by ambassadors and high-ranking officials. I transferred to it without insuring my hold on the important men of the department. Thus I opened my flank and left my rear unprotected, and made myself extremely vulnerable. Because of this, I find myself unprepared to handle that problem. Peter ordered Quiamco that I be transferred back to where I came from. I also forgot that the important thing to remember is the unbroken and steady .... AGB (Exh. L-78e). There is another document found in Baking's residence at 518-B Calixto Dayco which was admitted by him to be his. This document contains entries which indicate his dealings with the CCP organizations and its members. The entries are as follows: NFC

.......................................

P200

Graciano

.......................................

Graciano

.......................................

Apolinario

.......................................

Talas

.......................................

SGR

.......................................

Abe

.......................................

Godong

.......................................

Lake

.......................................

Mario

.......................................

Lamang

.......................................

The "NFC" has been shown to stand for National Finance Committee of the CCP, and "SGR" for Simeon G. Rodriguez, a member of the NFC of the CCP, who is also one of the appellants in the present cases. There were sheets of blank papers seized from 742 Colorado Street, Manila, the printing office of TITIS and the working place of Cesario Torres, also one of the appellants in the present cases, bearing signatures of "Apolinario", "Mariano P. Balgos" and "Luis Taruc". Considering the facts We have hereinabove-stated, We have no doubt in our mind that appellant Angel Baking as a confirmed communist, had aided in the efforts of the leaders of the CPP to promote and maintain the armed operations of the HMB to overthrow the government. The lower court found this appellant guilty as principal in the commission of the crime of rebellion. We have noted that the role played by this appellant was that of a technician or adviser. Considering that he participated in the rebellion efforts of the CPP while he was holding a public office. We agree with the finding of the lower court, and he should be punished under the first paragraph of Article 135 of the Revised Penal Code. 8. Appeal of Lamberto Magboo Appellant Lamberto Magboo was arrested by the agents of the MIS and of the Manila Police at 1608-B Andalucia, Manila, on October 18, 1950, along with the accused Ramon Espiritu, Salome Cruz, Rosario C. Vda. de Santos, Naty Cruz, Aurora Garcia and Josefina Adelan. It must be noted that

the place, 1608-B Andalucia, is the headquarters of Salome Cruz who was the Chief of the National Courier Division of the CPP. The evidence shows that the other persons who were arrested in that place namely, Naty Cruz, and Josefina Adelan worked as couriers under Salome Cruz. Rosario C. Vda. de Santos also worked under Salome Cruz as in-charge of outpost. Aurora Garcia was employed by her aunt, Rosario Vda. de Santos, as a maid and that she was selling the TITIS. The evidence shows that: Appellant Lamberto Magboo used the aliases Berting and Eddie. He admitted that he was a courier of the CPP, and that he actually mailed letters and packages at the Bureau of Posts and at the post office at the Far Eastern University; and he delivered letters, boxes of medicines, canned goods, lanterns, and shoes, from 1608-B Andalucia Street (house of appellant Salome Cruz) to the La Mallorca Bus station, to the LTB station, at Altura Street, Sta. Mesa, at Divisoria Street, and at Celeridad Street in Pasay City. 61 He was a checker of the regular and irregular couriers of Recos 1, 4, 5, 6 and 7 and Dist. No. 4 Pangasinan, and was also a special courier of Dist. No. 4, c/o Reco 4. 62 Considering that the Recos are the units of the CPP that are operating with the HMB in the field, such that the person who acts as courier from the headquarters of the National Courier Division of the CPP in Manila to these Recos was actually working and cooperating with the armed operations to overthrow the government. We find appellant Lamberto Magboo guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of Article 135 of the Revised Penal Code, and he should be punished accordingly. 9. Appeal of Nicanor Razon, Sr. Appellant Nicanor Razon, Sr., known also by the alias Elias Rubi, admitted that he had been a member of the CPP since July 1, 1945. Among the documents found at 1608-B Andalucia, Sampaloc, Manila, was the cadre registration and oath of this appellant as a member of the CPP. He was the secretary of Barangay I SECCOM (Sectional Committee) II of the District of Tondo, and later rose to the position of treasurer in the same committee. He helped in distributing the TITIS, the official organ of the CPP. 63 The record does not show that this appellant had testified in his behalf, nor presented any evidence in his defense. In his brief before this Court, however, this appellant claims that the lower court erred in finding him

guilty as an accomplice in the commission of the crime of rebellion, no evidence having been adduced to show that he had performed any act, which would constitute a cooperation in promoting the rebellion jointly undertaken by the CPP and the HMB. We find merit in the contention of this appellant. We find that the evidence against this appellant only shows that he is a member of the Communist Party, and that he had been secretary and later treasurer of SECCOM II of the District of Tondo. There is no evidence regarding his actual participation in the efforts of the leaders of the CPP and the HMB to promote the rebellion. His having distributed the TITIS, the official organ of the CPP, is at most an act in the category of a propaganda which in itself does not show that he advocated actual uprising against the Government. It has not been shown that he collaborated in the efforts to advance the cause of the rebellion. The fact that he is a member of the Communist Party and an officer of one of its committees is not a sufficient basis for declaring him guilty as an accomplice in the commission of the crime of rebellion. In the case of People vs. Hernandez, G. R. Nos. L-6025-6026 this Court held: ... We do not believe that mere membership in the Communist Party or in the CLO renders the members liable either of rebellion or of conspiracy to commit rebellion, because mere membership and nothing more merely implied advocacy of abstract theory or principle without any action being induced thereby; and that such advocacy becomes criminal only if it is coupled with action or advocacy of action, namely actual rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing the same. We, therefore, declare that appellant Nicanor Razon, Sr. is not guilty as an accomplice in the commission of the crime of rebellion, nor can We hold him guilty of the crime of conspiracy to commit rebellion. He should, therefore, be absolved of the charge against him in the information. Neither can We find him guilty of having committed a crime under the Anti-Subversion Law (R.A. No. 1700) which outlaws the Communist Party of the Philippines, because this law was enacted only in the year 1957, whereas the information against this appellant was filed on October 27, 1950. Again, in the case of People vs. Hernandez, supra, this Court held: On the other hand, Rep. Act 1700, known as the AntiSubversion Act, which penalizes membership in any organization or

association committed to subvert the Government, cannot be applied to the appellants because said Act was approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against appellants (committed 1945-1950); the AntiSubversion Act punishes participation or membership in an organization committed to overthrow the duly constituted Government, a crime distinct from that of actual rebellion with which appellants are charged. 10. Appeal of Marcos Medina Appellant Marcos Medina was arrested by MIS agents on October 17, 1950 at 1028-B, Quezon Boulevard. He used the alias Hiwara. He admitted in his written statement 64 that he was a member of the Hukbalahap Squadron 25 with headquarters at Kandating, Candaba; that he became a corporal of the Huks in 1944; and that he was a member of the Organizational Committee, Reco 4, Laguna, from 1946 to 1949. 65 In 1949, he studied at the Central Institute of Technology, and while studying, he used to help HMB couriers Lydia (alias of Alicia Villegas), and Celong (alias of Marcelino Calma) in carrying things for delivery to Commander REG of Reco 4. 66In his testimony he stated that the Organizational Committee, of which he was a member, had the duty to go to the barrios to teach and convince the people to join the HMB. 67 Testifying in his behalf, this appellant said that he was maltreated at Camp Murphy to make him sign the statement marked as Exhibits EE to EE4. 68 However, Sotero Morales, who was the one who investigated him, testified that Marcos Medina did not complain of any maltreatment when he was investigated. 69 We do not agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion. There is no evidence that he actually participated in any of the raids and ambushes alleged in the information although he admitted that he was a Huk. The evidence shows that he simply helped HMB couriers. We hold, however, that his being a member of the HMB is a sufficient basis to find him guilty of the crime of conspiracy to commit rebellion, punishable under Article 136 of the Revised Penal Code. In the case of People vs. Hernandez, supra, this Court held:. On the other hand, membership in the HMB (Hukbalahap), implies participation in an actual uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class

from thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by such membership he agrees or conspires that force be used to secure the ends of the party. Such membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to commit rebellion punishable by law. And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy, unless he takes to the field and joins in the rebellion of uprising, in which latter case he commits rebellion. We therefore declare appellant Marcos Medina guilty of the crime of conspiracy to commit rebellion, and he should be punished accordingly. 11. Appeal of Cesario Torres Appellant Cesario Torres was arrested by the agents of the MIS and the Manila Police on October 19, 1950 at his residence at 742 Colorado St., Manila, along with his wife, Rosenda Canlas Torres, and his co-accused, Arturo Baking. From his house the agents seized subversive documents, and articles including a typewriter, a mimeographing machine, mimeographing ink, stencils, coupon bond papers. Some of these coupon bond papers were blank but bore the signature of Luis M. Taruc. The evidence shows that: Appellant Cesario Torres used the aliases: Leo and Leodones, and he was also known as Cesario Yacat Torres. He admitted being a member of the HMB and of the CPP, that he was head of the Technical Office under the Propaganda Branch of the CPP, and as the head of that office he was in charge of typing and mimeographing the CPP documents and leaflets, and the TITIS which was the official organ of the CPP. 70 Documents were presented during the trial which clearly prove that this appellant was in regular communication with Federico Maclang, one of the top leaders of the CPP and of the rebellion. Thus, in one letter, he explained to Maclang why the issue of the TITIS for the previous week did not come out; and in another letter he informed Maclang that he would try to make the TITIS come out every Sunday morning. 71 In a letter to Maclang dated April 6, 1950, he inquired for the number of copies of "Suliranin ng

mga Familia" that should be printed; and in another letter he was requesting from Maclang P18.40 for the printing of 600 copies of the "Mapagpalaya", the official organ of the HMB. 72 Using the name Leodones, this appellant wrote subversive poems calculated to arouse popular support for the cause of the CPP and the HMB. One such poem, entitled "Ang Dalawangpung Taon Buhay ng PKP", eulogized the CPP, advocated armed revolt against the government and the liquidation of Liberals, Nacionalistas, and priests. The other poems were "Gumising Ka Kabataan", "Maiksing Kasaysayan ng Kilusang Magbubukid sa Filipinas", "Ang Ikawalong Taong Kaarawan ng Hukbong Magpapalaya ng Bayan", and "Ang Sigaw ng Bayan Api". All these poems were published in the different issues of the TITIS. 73 We find that appellant Cesario Torres played a very vital role in the promotion of the armed struggle that was jointly prosecuted by the CPP and the HMB. He was admittedly a member of both the CPP and the HMB. His membership with the HMB alone is a sufficient basis to hold him guilty of the crime of conspiring to commit rebellion. We believe, however, that he did more than to conspire with the leaders of the HMB and the CPP to commit rebellion. He was in charge of the publication and circulation of the TITIS which was the official organ the CPP, and of the "Mapagpalaya" which was the official organ of the HMB. It is through these two organs that the people were being aroused to support the armed struggle against the government. While it is true that this appellant did not go to the field to take up arms, the provocative poems and articles that he wrote and published in the official organs of the CPP and the HMB were just as effective to prosecute the rebellion as the guns and other weapons used by the HMB in the field. We agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly. 12. Appeal of Arturo Baking Appellant Arturo Baking was arrested by the agents of MIS and the Manila Police on October 19, 1950 at 742 Colorado St., Manila, along with his co-accused Cesario Torres and the latter's wife, Rosenda Canlas Torres. He is the nephew of appellant Angel Baking. It is shown by the evidence that: Appellant Arturo Baking used the aliases Red Bell, Eduardo Santos, Arturo Calma and Ed. He became a member of the CPP in December 1949. 74 In August 1950 he was employed by his co-accused Cesario Torres

as assistant in the publication center of the CPP at 742 Colorado St., Manila. He was one of those assigned as typist in the Educational Department of the CPP, it having been admitted by him that the publication center was under the Educational Department of the CPP. As assistant to Cesario Torres he helped in the printing, mimeographing and distribution of the TITIS, the official organ of the CPP; as well as in the printing, mimeographing and distribution of HMB documents. His work included the procurement of office supplies, and the keeping of records of CPP documents that had been printed and distributed to the different officials and organizational units of the CPP.75 This appellant had studied and finished the prescribed secondary course of the Communist Party, and was given a certificate, "Katibayan sa Pagaaral", attesting to his having satisfactorily completed such subjects as the "History of National Liberation Movement", "Dialektika ng Materialismo", "Political Economy", "Estado at Himagsikan", and "Ang Pagkakatatag ng Partido". 76 By his own declaration this appellant admitted having made studies about communism, took rigid tests in order to be accepted to the CPP, and that he believed a communist government should be implanted in the Philippines. In his testimony, he stated that he had developed a deepseated hatred against the agents of the law because of the predatory acts that were committed by them on poor fishermen, and that on several occasions, especially at various checkpoints, he saw the harsh treatment done by the Constabulary soldiers to civilians. He bewailed the graft and corruption in the government. 77 We have no doubt that this appellant is a confirmed communist, and that he was in full sympathy with the armed struggle being promoted by the leaders of the CPP and the HMB in order to overthrow the existing government of the Philippines. Upon appraisal of the evidence, however, We cannot agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion. We find that he was the assistant of appellant Cesario Torres, who was entrusted with the publication and distribution of the official organs of the CPP and the HMB, as well as of the printing and distribution of the documents of these two organizations. Being an assistant of appellant Cesario Tores whom We have declared to be a principal in the commission of the crime of rebellion, We hold that appellant Arturo Baking is guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of the Article 135 of the Revised Penal Code, and he should be punished accordingly. 13. Appeal of Simeon G. Rodriguez Appellant Simeon G. Rodriguez was arrested by the agents of the MIS and the Manila Polioe in his house at 683 Pasaje Rosario, Paco, Manila, on

October 18, 1950, along with Jose Lava, Federico Bautista, Victorina G. Rodriguez and Pedro Vicencio. The evidence shows that: Appellant Simeon G. Rodriguez used two aliases: Lakindanum (Laquindanum) and Sammy. He was a member of the National Finance Committee of the CPP since October 21, 1949. 78 When he was arrested on October 18, 1950 there were found in his house some P42,376.00 in paper currency in different denominations. Of the money that was found in his house, it was conclusively shown that 65 P100-bills, 60 P50-bills, P145.00 in PNB circulating notes and $310.00 formed part of the money that were taken from the office of the Provincial Treasurer in Sta. Cruz, Laguna, when the HMB raided that town in the night of August 26, 1950. We have stated at the early part of this opinion that on the night of August 26, 1950 some 400 Huks raided Sta. Cruz. The cashier of the office of the Provincial Treasurer was forced by the Huks at gun point to open the vault of the provincial treasury from which the Huks took some P80,600.00. It happened that the Provincial Treasurer of Laguna, Mr. Balbino Kabigting, had a record of the serial numbers of the paper money that was deposited in the provincial treasury which were taken by the Huks, and after that raid Mr. Kabigting even issued a warning to the public about the loss of the money — mentioning in the warning the serial numbers of the money taken. It was found out that the serial numbers of the 65 P100-bills, of the 60 P50-bills, of the P145.00 PNB circulating notes, and of the $310 found in the house of appellant Rodriguez tallied with the serial numbers of the paper currency that was taken from the provincial treasury of Laguna. This appellant, in his testimony, declared that the paper money whose serial numbers tallied with those paper money that were taken from the provincial treasury of Laguna formed part of the money that Jose Lava (one of the appellant herein) brought to his house. Considering the high position that appellant Lava held in the CPP and the fact that the armed operations of the HMB were promoted and directed by the Secretariat of the CPP, of which Lava was a member, and the fact that appellant Simeon Rodriguez was a member of the National Finance Committee, it is easy to understand why Jose Lava brought to this appellant that money which was taken by the HMB from the provincial treasury of Laguna. Significantly, one of the evidence presented during the trial was a receipt, dated October 5, 1950, signed by Lakindanum in favor of Com. Torres (Casto Alejandrino, a well-known HMB commander) of Reco 4, acknowledging receipt of P32,740, $310, and P145 in PNB circulating notes. 79 It could be that Jose Lava made Rodriguez prepare that receipt when he delivered the money, and the receipt was intended to be sent to Com. Torres to assure the latter that the money was delivered to Rodriguez. That receipt was among the papers seized when these appellants were

arrested. This is a clear indication of the connection of appellant Simeon Rodriguez to the armed operations of the HMB, and the coordinated work of the leaders of the CPP and of the HMB in the armed uprising. There are other documents clearly indicating the connection of appellant Rodriguez to the HMB commanders in the field: (1) There is a letter dated October 13, 1950, addressed to Com. Lakindanum (Simeon G. Rodriguez) coming from Com. Torres (Casto Alejandrino) wherein the latter acknowledged receipt of the letter and articles that were sent to him by Com. Lakindanum. This letter also instructed Lakindanum not to send the watches to Reco 4. 80 (2) There is another letter dated October 13, 1950, of Com. Lanao, addressed to Com. Lakindanum, wherein the former was requisitioning from Lakindanum a radio set. In this letter Com. Lanao, among others, said: "We would make the attempt to provide you with an extra ration of camote leaves when you visit us again". 81 This statement in the letter of Com. Lanao indicates that appellant Simeon Rodriguez used to visit the men in the field. (3) There is still another letter that came from Com. Amor, addressed to Com. Lakindanum, wherein the former acknowledged receipt of all the things, including a radio tester costing P30.00, that the latter had sent to him. 82(4) Then there is a letter written by herein appellant to Com. Beria (Federico Maclang) stating that he delivered the tester to Com. Reg in the absence from camp of Com. Torres. 83 (5) There is a receipt showing that appellant Rodriguez signed in the name of the National Finance Committee, acknowledging receipt of the amount of P705.00. 84 (6) There is still another receipt signed by herein appellant acknowledging receipt of P1,200 from the National Finance Committee, which was prepared for accounting purposes. 85 This appellant admitted, in his testimony, his close association with Jose Lava. He also said that he was inclined to believe in the tenets of communism and the use of force in case the people decide to take political power in their hands. We have carefully examined the evidence of the prosecution against this appellant, and also the evidence which he presented in his defense — consisting of his own testimony mainly denying the positive evidences against him and of the testimonies of witnesses vouching for his good character and the fact that he was a businessman — and We have arrived at the conclusion that this appellant is one of the top communist leaders who had promoted and maintained the armed operations of the HMB in the field. We agree with the finding of the lower court that appellant Simeon G. Rodriguez is guilty as principal in the commission of the crime of rebellion; and he should be punished accordingly.

14. Appeal of Marciano de Leon Appellant Marciano de Leon was arrested, together with Angel Baking at Room 504, Samanillo Building, Escolta, Manila, on October 19, 1950. He used the aliases Mar and Marcial. At the time of his arrest, he worked in the Personnel Section at the Headquarters of the Philippine Constabulary. He admitted having supplied his co-accused Federico Bautista with government documents and confidential information regarding the HMB from the PC Headquarters. These were: 86 1. Memorandum to all PC Commander re Huk infiltration. 2. Memorandum to all PC Commanders re Loyalty Status of all PC personnel. 3. Memorandum on PC-Civilian Relations. 4. List of PC Agents and their addresses. 5. List of persons wanted by the PC. 6. Letter on the subject: "Yellow Journalism." 7. U.S. Army Technical Manuals and Field Manuals. We concur with what the lower court said about this appellant: "Considering the nature of the documents he admitted in his confession to have been furnished by him to Federico Bautista, the contents of his confession and the accessibility to him of those documents by reason of his position in the Personnel Section of the Philippine Constabulary, the Court is inclined to believe that he also took part in the conspiracy to overthrow the government by armed struggle and did his bit by furnishing Federico Bautista with information and records regarding the HMB activities obtainable from the PC Headquarters." We do not agree with the lower court, however, that this appellant is guilty as principal in the commission of the crime of rebellion. Considering the top position of Federico Bautista in the CPP hierarchy, it cannot be denied that appellant Marciano de Leon, by giving the information hereinabove stated to Federico Bautista, had cooperated or helped in the prosecution of the armed rebellion. We hold this appellant guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of Article 135 of the Revised Penal Code, and should be punished accordingly.

15. Appeal of Honofre Mangila

Honofre Mangila is guilty as principal in the commission of the crime of rebellion and that he should be punished accordingly.

We find, by the evidence, that: 16. Appeal of Cenon Bungay Appellant Honofre Mangila was arrested on November 22, 1950 at 215 Leveriza, Pasay City. He used thealiases Miller and Tommy. He admitted being a communist — in fact, he said he was proud to be a communist — and being a member of the Central Committee of the CPP. He was also a member of the Trade Union Division (TUD) of the CPP. In the meeting of the Secretariat of the CPP on September 1, 1950, appellant Mangila was appointed auditor of funds and books of account of the National Finance Commission (NFC). 87 He actually audited the financial statements of the NFC for the months of April, May and June, 1950; Mangila's auditing of the National Finance Commission's account was approved by the Secretariat in its meeting of September 22, 1950. He was also the chairman of the organizational department (OD) for Manila under the Organizational Bureau of the CPP. 88 There is no question that this appellant is one of the top men in the hierarchy of the CPP. He was a member of the Central Committee which is the body second only to the National Congress of the CPP. When the National Congress is not in session it is this Central Committee that makes decisions for the party. While testifying in his behalf he revealed his strong communist party discipline when he declined to reveal, upon being crossexamined, the identity of the other members of the Central Committee, and the members of the National Congress and of the Politburo. While testifying he was very outspoken in indicting the existing economic and social order in the country, and asserted that it is only under the Communist Party when the laboring class can expect a bright future. During the trial letters signed by "Miller" or "Tommy", were presented in evidence. Those were letters addressed to Johnny (Ramon Espiritu) and to Luming (Salome Cruz) concerning financial matters, meetings and other activities in the CPP. 89 Considering that it is the CPP, as We have shown, that promotes and maintains the armed operations of the HMB against the government, and considering that appellant Honofre Mangila is a member of the Central Committee which is the most powerful body in the CPP when its National Congress is not in session, and considering further that this appellant was even appointed auditor to audit the funds of the CPP, We believe that this appellant is one of the principal leaders of the rebellion as charged in the information. We agree with the finding of the lower court that appellant

We find, by the evidence, that: Appellant Cenon Bungay was arrested by Vicente Roco of the 20th BCT and some members of the Manila Police on November 21, 1950, at 432 Isabel, Sampaloc, Manila. This appellant used the alias Rufing. In written statements, he admitted that he joined the Huks in 1946, and at the time of his arrest on November 21, 1950 he was the commander of the HMB in the province of Batangas and the G-3 of Field Command (FC) No. 3 of the HMB. While testifying in open court, he declared that as the HMB commander he had 1,300 fully armed men (equivalent to 4 HMB battalions) under him, and as a Huk commander he had been receiving directives from the higher authorities of the HMB. He revealed that Luis Taruc was the Supreme of the HMB. 90 He also admitted his direct participation in an encounter between the HMB and the government forces in Plaridel, Bulacan, on March 27, 1950. He stated that in obedience to an order from Regional Command No. 4, he led his unit in the raid of San Pablo City on March 29, 1950, resulting in the death of Maj. Alicbusan. He said that their purpose was to overthrow the government by force, and to establish the "New Democracy." 91 He also declared that he joined the Huks in 1942 because of poverty; that his parents were tenants in Hacienda Bahay Pare at Candaba, Pampanga; that he stopped schooling after the 7th grade in order to help support his parents and ten brothers and sisters; that realizing the miserable conditions of the tenants, he joined the "Aguman Ding Talapagobra" (ADT), the aim of which was the amelioration of the tenants; that through this organization he realized that the tenants must organize to promote their welfare and to prevent the abuses of landlords. He further declared that in spite of the sacrifices of the Huks for 3 years during the Japanese occupation, the Huks representing the countless tenants, were ignored by the U.S. armed forces and by the Commonwealth Government; and having been harassed, persecuted and frustrated in their aims to ameliorate the condition of the masses, the Huks went underground. According to him the Huks felt more persecuted when Luis Taruc, the successful congressional candidate in 1946 of the Democratic Alliance, was denied his seat in Congress, and that they lost faith in the government due to the frauds and terrorism perpetrated in the elections that followed. 92

Appellant Bungay admitted that the HMB had to use force in order to change the administration. He said that the men under him used arms given by the American soldiers and Communist sympathizers. He also revealed that while he was the Huk commander at Cavite, he had two encounters with government forces, one at Aliang, Malabon on February 18, 1950; and the other at Alfonso, Cavite, on February 22, 1950. These admissions were fully corroborated by Benjamin Advincula, a ranking officer and Secretary of Reco Command No. 4 of the HMB and by Ronald Dorsey, a former Huk member. 93

where couriers go to deliver, or to get, letters or articles intended for RECOS in the field, clearly indicate that this appellant was actively cooperating in the efforts of those promoting the rebellion. Being 20 years of age and a college student, it can be expected that he knew that he was doing something for the communists and the Huks. More so, because he was living with Simeon G. Rodriguez, one of the top leaders of the CPP. He admitted having delivered notes sent by Simeon Rodriguez to Angel Baking, another top leader of the CPP. The house of Rodriguez was the meeting place of CPP leaders.lawphil.ñet

There is no doubt that Cenon Bungay, as Huk commander, was also a leader in the rebellion. We agree with the finding of the lower court that this appellant is guilty as principal in the commission of the crime of rebellion, and he should be punished accordingly.

We find this appellant guilty as a mere participant in the commission of the crime of rebellion, under the second paragraph of Article 135 of the Revised Penal Code, and he should be punished accordingly. 18. Appeal of Felipe Engreso

17. Appeal of Pedro T. Vicencio Appellant Pedro T. Vicencio was arrested on October 18, 1950 at 683 Pasaje Rosario, Paco, Manila, along with Jose Lava, Federico Bautista, Simeon Rodriguez and Victorina Rodriguez. He was also known as Pedring. In a statement, signed by him at Camp Murphy after his arrest, he admitted that he used to run errands, bringing foodstuffs, medicines and other supplies intended for the HMB, and also delivering packages that were labelled R-1, R-2, R-3, R-4 and R-5, which stood for Reco-1, Reco-2, etc., respectively, to Andalucia Street where Rosario Vda. de Santos received them. 94 We have found, in this decision, that Rosario Vda. de Santos was working under Salome Cruz who was the chairman of the National Communications Division (NCD) of the CPP, and that she was in charge of an outpost, checking the irregular couriers for Recos 1, 2, 3, 4, 5 and Pangasinan, and she was staying at 1608-B Andalucia, Sampaloc, Manila. Testifying in his own behalf, appellant Vicencio denied being a member of the CPP nor of the HMB, although he stated that at the time of his arrest, he was studying the principles of communism, and that he sympathized with the Huks. At the time of his arrest this appellant was 20 years old, and he was a first year Liberal Arts student. He admitted in his testimony that he delivered to Angel Baking notes sent by Simeon Rodriguez. 95 While it is not shown that this appellant actually took part in the armed operations of the HMB, his having delivered foodstuffs, medicines and other supplies which were intended for the HMB, and his having delivered packages to Rosario Vda. de Santos who was in charge of the outpost

Appellant Felipe Engreso was arrested on October 18, 1950 at 1938 Int. 7, Felix Huertas St., Manila, along with Federico Maclang and Julita Rodriguez. At the time of his arrest, he was about 15 years old, and was living as a houseboy of one known to him as Ambrosio Reyes. It appears that in a written statement that he signed before the MIS agents, this appellant admitted having delivered letters to Mr. Espiritu (Ramon Espiritu) at Andalucia St., Manila; to Cesar (Cesario Torres) at 742 Colorado, Manila; and to Gaston (Jose Lava) at Celeridad St., Pasay City. It also appears in that statement that he used to get the TITIS from Colorado St. (residence of Cesario Torres and the CPP publication center) to deliver them to Andalucia Street (residence of Ramon Espiritu, Salome Cruz and Rosario Vda. de Santos) and retained one copy for Ambrosio Reyes. 96 Testifying in his behalf, appellant Engreso declared that before his arrest he never knew that his master, Ambrosio Reyes, is the accused Federico Maclang. He came to know his master to be Federico Maclang only when they were already detained at Muntinglupa. 97 Upon a careful study of the evidence against this appellant, We have come to the conclusion that his guilt has not been proved beyond reasonable doubt. This appellant was only around 15 years old. We accept his testimony that he did not know that his master was Federico Maclang, and that all the time he knew him to be Ambrosio Reyes. He was simply a houseboy of Maclang. He had to obey orders to deliver letters or deliver copies of TITIS. There is no showing that he knew the contents of the letters that he was made to deliver, or that he knew the addressees to be

communists. The Solicitor General recommends the acquittal of this appellant upon the ground that there is no sufficient evidence to show his criminal intent. We agree with the Solicitor General. We, therefore, acquit appellant Felipe Engreso of the charge against him in the information. xxx

xxx

xxx

IN VIEW OF THE FOREGOING, the decision appealed from should be, as it is hereby, modified, as follows: 1. In G.R. No. L-4974

four (4) months of prision mayor, with the accessories provided by law, and to pay their proportionate shares of the costs. Appellant Marcos Medina is found guilty of the crime of conspiracy to commit rebellion under Article 136 of the Revised Penal Code, and he is hereby sentenced to suffer imprisonment of five (5) years, four (4) months, and twenty (20) days of prision correccional and a fine of P2,000, with the accessories provided by law, with subsidiary imprisonment in case of insolvency, and to pay his proportionate share of the costs. Appellant Nicanor Razon, Sr. is hereby acquitted, with costs de oficio. 3. In G.R. No. L-4976

Appellants Jose Lava, Federico Bautista, Federico Maclang, Ramon Espiritu, Salome Cruz and Angel Baking are found guilty as principals in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and every one of them is hereby sentenced to suffer imprisonment for ten (10) years of prision mayor, and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay their proportionate shares of the costs.

Appellant Simeon G. Rodriguez is found guilty as principal in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment of ten (10) years of prision mayor and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay his proportionate share of the costs.

Appellant Rosario C. Vda. de Santos is found guilty as a participant in the commission of the crime of simple rebellion under the second paragraph of Article 135 of the Revised Penal Code, and she is hereby sentenced to suffer imprisonment of seven (7) years and four (4) months of prision mayor, with the accessories provided by law, and to pay her proportionate share of the costs.

Appellant Marciano de Leon is found guilty as a participant in the commission of the crime of simple rebellion under the second paragraph of Article 135 of the Revised Penal Code, and is hereby sentenced to suffer imprisonment of seven (7) years and four (4) months of prision mayor with the accessories provided by law, and to pay his proportionate share of the costs.

2. In G.R. No. L-4975 Appellant Cesario Torres is found guilty as principal in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and he is hereby sentenced to suffer imprisonment of ten (10) years of prision mayor, and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay his proportionate share of the costs. Appellants Lamberto Magboo and Arturo Baking are found guilty as participants in the commission of the crime of simple rebellion under the second paragraph of Article 135 of the Revised Penal Code, and every one of them is hereby sentenced to suffer imprisonment of seven (7) years and

4. In G.R. No. L-4977 Appellants Honofre Mangila and Simeon Bungay are found guilty as principals in the commission of the crime of simple rebellion under the first paragraph of Article 135 of the Revised Penal Code, and every one of them is sentenced to suffer imprisonment of ten (1O) years of prision mayor, and a fine of P20,000, with the accessories provided by law, but without subsidiary imprisonment in case of insolvency, and to pay their proportionate shares of the costs. 5. In G.R. No. L-4978 Appellant Pedro T. Vicencio is found guilty as a participant in the commission of the crime of simple rebellion under the second paragraph of

Article 135 of the Revised Penal Code, and is sentenced to suffer imprisonment of seven (7) years and four (4) months of prision mayor, with the accessories provided by law, and to pay his proportionate share of the costs. Appellant Felipe Engreso is hereby acquitted, with costs de oficio. The Court takes judicial notice, that, except for appellants Lamberto Magboo, Nicanor Razon, Sr., Pedro T. Vicencio, and Felipe Engreso who are on provisional liberty under bail, all the rest of these appellants are detained, and their detention dates back as of August, October or November, of the year 1950, as the case may be. The Director of the Bureau of Prisons is hereby directed to determine the period of detention that should be credited to the appellants who are under detention, pursuant to the provisions of Article 29 of the Revised Penal Code, and to release immediately those appellants who are entitled to be credited with the period of their detention equal to the penalty of imprisonment imposed upon them in this decision. It is so ordered. Reyes, J.B.L., Dizon, Makalintal, Sanchez and Capistrano, JJ., concur. Teehankee and Barredo, JJ., took no part. Concepcion, C.J., and Castro, J., are on leave.

Separate Opinions

FERNANDO, J., concurring: I join my colleagues in giving assent to the well-written and exhaustive opinion of Justice Zaldivar, speaking for this Court, distinguished as it is by grasp of the relevant facts meticulously examined and narrated with clarity as well as of the controlling legal principles that call for application. Particularly noteworthy to my mind is the re-affirmation of our doctrine in People v. Hernandez, 1 with the present Chief Justice, who penned the opinion, stressing the primacy of liberty even when the offense charged is against the security of the state.

Precisely because of what I deem to be high estate that must be accorded liberty even in times of trouble and distress, I feel that additional words might not be amiss. It would appear to me that the prosecution of the accused herein having been started at a time when there appeared to be a clear danger to democratic institutions, the belief seemed to have gained credence in certain circles that as far as these accused were concerned, there was no need to apply with rigor their constitutional rights. That to me is a false thesis. It implies the weakness of a democracy to defend itself democratically. Under such view, a government could be spared the threat from internal subversion, but what is saved is no longer the government contemplated by the framers and the people who adopted the Constitution. Well has Justice Bengzon observed in his separate opinion in Nava v. Gatmaitan: 2 "And in my opinion, one of the surest means to ease the uprising is a sincere demonstration of this Government's adherence to the principles of the Constitution together with an impartial application thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that their comrades now under custody are being railroaded into Muntinglupa, without benefit of those fundamental privileges which the experience of the ages has deemed essential for the protection of all persons accused of crime before the tribunals of justice. Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always cling to the principle uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the Constitution, "the Courts will favor personal liberty" ..." Justice Tuason in another opinion rendered in that case would apply the constitutional rights with undeviating rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called "judicial statesmanship." The legislature itself cannot infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights." 3

It is extremely difficult to find cause for disagreement with the above views for they accord with the fundamental postulate of this Government, namely, that the Constitution is supreme and this Court, as its ultimate guardian, is called upon to apply its provisions in the determination of actual cases and controversies before it. Well has it been observed that it exists precisely to assure the protection of the citizen and the maintenance of his constitutional rights. The exercise of this official duty requires that it gives effect to the supreme law even to the extent in clear cases of setting aside legislative and executive action.

Footnotes 1

G.R. Nos. L-6025 and L-6026, July 18, 1956; 99 Phil. 515, 520, 541, 547, 551. 2

99 Phil. 515, 535.

3

Appellee's brief, pp. 180-182.

This is not to say that the judicial process takes place in a social void. The existence of an emergency is not a factor to be reckoned with lightly. The task of this Court in adjusting or harmonizing individual rights with the safety of the state, ordinarily one of utmost delicacy, then becomes even more formidable. The fact remains however that the regime established here is one of liberty of justice and of democracy. Belief in the theory of liberty is not merely an echo of a discredited past. It remains a fighting faith. It is a proclamation of the vitality of the democratic process. It rests on the conviction deeply and profoundly held that given the choice, a free people will prefer to remain free.

4

7

Tan It vs. Sun Insurance Office, 51 Phil. 212.

This is not to deny that force has to be met with force. This is not to deny that the courts are not to hamper the efforts of the executive agencies to put down subversion in whatever form it may manifest itself and wherever it may make its appearance. This is not to deny that on the executive and its agents is conferred the authority to cope with rebellious activities. Such authority must be equal to the grave responsibility thus confronting it.

8

Pages 61-62, t.s.n., Reconstitution.

9

Pages 33, 37, t.s.n., Reconstitution.

Nonetheless, even under such circumstances, our duty is clear. It is not for us to abdicate our constitutional function. We cannot, just because of the danger sanction every step the executive authorities might take. If we do so, we would lend comfort to the very forces seeking to undermine the government. They can assert, and with plausibility, that the Constitution no longer obtains. It is precisely in times of emergency that the role of the judiciary as guardian of constitutional rights becomes more pressing and inescapable, if the faith and confidence of the people in democracy in action are to be preserved unimpaired.

11

Since to my mind such a view is implicit in the opinion of Justice Zaldivar, even if not expressly avowed, I yield my concurrence.

15

People vs. Camerino, L-13484, May 20, 1960; U. S. vs. Cernias, 10 Phil. 682. 5

U. S. vs. Santiago, 41 Phil. 793.

6

People vs. Hernandez, supra; People vs. Romagosa, supra; and People vs. Santos, supra.

10

Pages 429-432, t.s.n., Vol. III.

Page 548, t.s.n., Vol. III.

12

Page 410, t.s.n., Vol. III.

13

Sec. 23, Rule 132, Rules of Court.

14

Page 564, t.s.n., Vol. III; Cho Chun Chac vs. Garcia, 47 Phil. 530; Alejandrino vs. Reyes, 53 Phil. 974. Anderson vs. State, 72 Ga. App. 487; 34 S.E. (2d) 110; Underhill Criminal Evidence, 5th ed., Vol. I, p. 430. 16

Exhibit O-13-14, par. 1.

17

Exhibit O-106-107, par. 2.

36

Exhs. N-265-268; M-1570.

18

Exhibit M-1726.

37

Exhibit CC.

19

Exhibit K-206.

38

20

Exhibit O-582-589.

21

22

23

24

25

26

27

Exhs. O-91-92, par. 2; O-308-309, par. 2; pages 500-512, t.s.n., Vol. III. 39

Exh. O-106-107.

40

Exhibit M-25-26.

41

Exhibits O-99-101, par. 3; O-312, par. 4.

42

Exhibit O-334-337, par. 6.

43

Exhibit O-643, par. 9.

44

Pages 433-434, t.s.n., Vol. III.

45

Exhibits HH-4 to HH-8; page 780, t.s.n., Vol. III.

Exhibit M-1806-1813. Page 429, t.s.n., Vol. III. Pages 433-434, t.s.n., Vol. III. Page 803, t.s.n., Vol. III. Exhs. N-77; N-212. Exhs. M-421-422; N-60. Exh. M-31-32, par. 18. 46

Exhibits L-318; M-1330-1331; M-21; O-441-444; O-643, par. 9; O334-337, par. 10; pages 19, 26, t.s.n., Vol. III.

28

Exh. O-473-474.

29

Exh. M-280-283.

30

Exh. M-248-251.

48

Exhibits M-1310; M-1365-1366.

Exh. N-257-268.

49

Exhibits C-318, par. 1; N-535-538.

Exhs. N-269-271; M-1585.

50

Exhibits M-1241, M-1255, M-1743, M-1765-1768.

Exhs. N-175-176; O-480.

51

Exhibit M-54.

Exh. K-1396-1397.

52

Exhibit M-159-162.

Exhs. M-244-254; M-258-267; M-269.

53

Exhibits M-152-153.

31

32

33

34

35

47

Exhibits M-1241; M-1242-1243; M-1268-1269; M-248, M-260; O449; M-1257, M-1270 and M-1369.

54

Exhibit M-80.

55

Pages 778-779, t.s.n., Vol. III; Exhibits M-54, M-56, M-57, M-58, M-60, M-61, M-65. 56

Exhibit O-281, par. 6.

57

Exhibit O-316-317, par. 3.

58

59

72

Exhibits M-171 and M-172.

73

Exhibits K-189, M-1660, M-1666 to M-1670.

74

Exhibit W-3, par. 7.

75

Exhibits W, W-1, K-208; Page 841, t.s.n. Vol. III.

76

Exhibit L-145.

77

Pages 834-836, t.s.n., Vol. III.

78

Exhibit O-13-14, par. 1.

79

Exhibits O-572, O-572a-1, O-572 ab-1.

80

Exhibit O-577.

81

Exhibit O-578.

82

Exhibit O-576.

83

Exhibit O-505-506.

84

Exhibit M-10.

85

Exhibit O-9.

86

Exhibits BB to BB-7, p. 610, t.s.n, Vol. III.

87

Exhibit O-643, par. 8; Pages 715, 729, t.s.n., Vol. III.

88

Exhibits Z to Z-11.

89

Exhibits M-570, M-1472-1474.

90

Exhibits LL to LL-7; Pages 670, 673, t.s.n. Vol. III.

Exhibit M-35-38, par. 15. Exhibit M-35-38, par. 15.

60

Exhibit L-33-P to L-33 Pa. See also Exhibits L-33-c and L-33-d which had been shown to be Baking's handwritten outline of his MEMO on the WCS. 61

Exhibits GG to GG-10.

62

Exhibits M-1241, M-1255, M-1244, M-1290-91; Pages 671- 673, t.s.n., Vol. II. 63

64

65

66

67

68

69

70

71

Exhibits DD-1, M-1423; Pages 654-657, t.s.n., Vol. II. Exhibits EE to EE-4. Page 743, t.s.n., Vol. III. Exhibits EE-2 to EE-3. Pages 657-658, t.s.n., Vol. II. Pages 744-746, t.s.n., Vol. III. Page 669, t.s.n., Vol. III. Exhibits V-V-4; Pages 626-628 t.s.n., Vol. II. Exhibits M-1054 and M-1056.

91

92

93

Page 428, t.s.n., Vol. I; Page 671, t.s.n., Vol III. Pages 634-35, 637, 666, 689, t.s.n., Vol. III. Pages 668-670, t.s.n., Vol. III.

94

Pages 172, 196, 198, t.s.n., Vol. II; Page 682, t.s.n., Vol. IV; Pages 3 and 6, t.s.n., Vol. III. 95

Exhibits JJ to JJ-7; Pages 3 and 6, t.s.n., Vol. III.

96

Exhibits SS to SS-3.

97

Pages 620-623, t.s.n., Vol. III.

FERNANDO, J., concurring: 1

Phil. 515 (1958).

2

90 Phil. 172 (1951).

3

At p. 206.

JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court, Quezon City, Branch 103, respondents.

NARVASA, J.:

Republic of the Philippines SUPREME COURT Manila EN BANC

Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of arguments that are now brought to bear on the same question.

G.R. No. 92163 June 5, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner vs. JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE,respondents. G.R. No. 92164 June 5, 1990 SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners, vs. PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL, and HON.

The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula Torres. 3

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpusherein (which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights in being, or having been: (a) held to answer for criminal offense which does not exist in the statute books; (b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence was denied due process; (c) denied his right to bail; and (d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally determined the existence of probable cause. 4 The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 92164 7 Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandez ruling because-and this is putting it very simply-the information in Hernandezcharged murders and other common crimes committed as a necessary means for the commission of rebellion,whereas the information against Sen. Enrile et al. charged murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime ("delito complejo") arising from an offense being a necessary means for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and is the subject of the Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act constituting two or more grave or less grave offenses referred to in the first clause of the same paragraph, with

which Hernandez was not concerned and to which, therefore, it should not apply. The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the Panlilios. The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163. The parties' oral and written pleas presented the Court with the following options: (a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral argument although it is not offered in his written pleadings; (b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes of grave or less grave character; (c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether

or not necessary to its commission or in furtherance thereof. On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that the doctrine should be reexamined. 10-A In the view of the majority, the ruling remains good law, its substantive and logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime which precisely sought to nullify or neutralize Hernandezby enacting a new provision (Art. 142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."' 11 In thus acting, the President in effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing. On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion, but not in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case: There is one other reason-and a fundamental one at thatwhy Article 48 of our Penal Code cannot be applied in the

case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. in other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant. Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a penalty more severe than that which would be proper if the several acts performed by him were punished separately. In the words of Rodriguez Navarro: La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.) We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading:

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro. En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que represents la suma de las que pudieran imponerse, penando separadamente los delitos. Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163) and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The reason for this benevolent spirit of article 48 is readily discernible. When two or more crimes are the result of a single act, the offender is deemed less perverse than when he commits said crimes thru separate and

distinct acts. Instead of sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense. 12 The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandezremains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion. This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of the recourse he has taken. The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said: In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly committed by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court in dealing with

accused persons amenable to a similar punishment, said defendant may be allowed bail. 13 The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context ofHernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information.14 There is nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation. It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personallydetermining the existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by personally evaluating the report and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the warrant of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary investigation. 17 Merely because said respondent had what some might consider only a relatively brief period within which to comply with that duty, gives no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to overcome the legal presumption that official duty has been regularly performed.

Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandez as applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial? The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent Judge. 18 There thus seems to be no question that All the grounds upon which petitioner has founded the present petition, whether these went into the substance of what is charged in the information or imputed error or omission on the part of the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in the criminal case before said Judge and should have been brought up there instead of directly to this Court. There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence of the respondent Judgeindeed such an assumption would be demeaning and less than fair to our trial courts; none whatever to hold them to be of such complexity or

transcendental importance as to disqualify every court, except this Court, from deciding them; none, in short that would justify by passing established judicial processes designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the Court against the grant of bail to petitioner: the view that the trial court should not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant of arrest fixing no bail. Immemorial practice sanctions simply following the prosecutor's recommendation regarding bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital offense is charged. 19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to claim the right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him. It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court. Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said petition interdicted the ordered and orderly progression of proceedings that should have started with the trial court and reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of Appeals on review. Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses

(G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in factualmilieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in violation-they claim-of their constitutional rights. It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing rebellion. It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its province. WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to

bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs. SO ORDERED. Cruz, Gancayco and Regalado, JJ., concur. Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163. Cortes and Griño-Aquino, JJ., are on leave.

crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court. Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663). It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court. The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.

Separate Opinions

MELENCIO-HERRERA, J., concurring: I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements. I take exception to the view, however, that habeas corpus was not the proper remedy. Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a

The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis]. The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which

petitioner stands accused of and for which he was denied bail is non-existent in law. While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding. The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied]. The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner. If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpushas served its purpose.

GUTIERREZ, JR., J., concurring: I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress. I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated. I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us. First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple. Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently rejected by this Court. Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that the Hernandezdoctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the

President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights. Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself. And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion. This argument is puerile. The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not

connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion. The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling. All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law. A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime. The principle bears repeating: Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on

the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983]) I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court. The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion. The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown. In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food. The Court in Salonga stressed: The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety

of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462) Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of homicide, the Judge may rightly read it as

charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as nonexistent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated. The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts. I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime.

FELICIANO, J., concurring: I concur in the result reached by the majority of the Court. I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed

forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection. The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental nonretroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code). The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36 years)

and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]). It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today. Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the simple application of the Hernandez doctrine

that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion. I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting: I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and well-settled principles of criminal law and jurisprudence. To my mind, the Hernandez doctrine should not be interpreted as an allembracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision). The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have farreaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof. The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion

as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply. The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners. I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine.

an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings. It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102). Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case.

BIDIN, J., concurring and dissenting: SARMIENTO, J., concurring and dissenting: I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner. I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,habeas corpus is the proper remedy available to petitioner as

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled in the tomes of our jurisprudence as correct doctrine. As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to

property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3 whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes.

I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance.

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

Furthermore, the Supreme Court, in the Hernandez case, was "groundbreaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple frustrated murder does not exist.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4

PADILLA, J., dissenting: I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion."

And yet, notwithstanding these unmistakable and controlling beacon lightsabsent when this Court laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's validity is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and properinformation, for this entire exercise to merit the serious consideration of the courts. ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City, DISMISSED. Consequently, the petitioners should be ordered permanently released and their bails cancelled.

period imposable upon the offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court. Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ ofHabeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663). It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by a Court.

Paras, J., concurs. The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.

Separate Opinions MELENCIO-HERRERA, J., concurring: I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only served to strengthen its pronouncements. I take exception to the view, however, that habeas corpus was not the proper remedy. Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously intended to make the penalty for the most serious offense in its maximum

The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the detention or confinement is the result of a process issued by the court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis]. The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding. The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [emphasis supplied]. The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional liberty to petitioner. If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the lower Court for further proceedings is in order. The Writ of Habeas Corpushas served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a penalty for its commission. That function is exclusively for Congress. I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the defective informations filed by the prosecutors should have been treated. I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to come to us. First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple. Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently rejected by this Court. Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law. However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and made it clear that the Hernandezdoctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until the Supreme Court reversed itself. And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission of rebellion. This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the destruction of life and property. The same act cannot be punishable by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities furthers the rebellion and is part of the rebellion. The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme Court ruling. All courts should remember that they form part of an independent judicial system; they do not belong to the prosecution service. A court should never play into the hands of the prosecution and blindly comply with its erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make it conform to the law. A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations in the body of his decision, order, or resolution. However, any

judgment he renders, any order he prescribes, and any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from their arrest for a non-existent crime. The principle bears repeating: Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera v. Barrera. (L31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and authoritative, binding on those occupying the lower ranks in the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what the law is; it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all other courts should take their

bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983]) I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only in the minds of the prosecutors, not in the records of the case. I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in due time to the trial court. The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a rebellion. The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown. In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous bombing of innocent civilians

because the man who planted the bomb had, sometime earlier, appeared in a group photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of food. The Court in Salonga stressed: The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that a transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Although there is no general formula or fixed rule for the determination of probable cause since the same must be decided in the light of the conditions obtaining in given situations and its existence depends to a large degree upon the finding or opinion of the judge conducting the examination, such a finding should not disregard the facts before the judge nor run counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should not

go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461- 462) Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as nonexistent. The prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not exist, those informations should be treated as null and void. New informations charging the correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the Principle in Salonga v. Cruz Patio, et al. (supra) has been violated. The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If the Government feels that the current situation calls for the imposition of more severe penalties like death or the creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts. I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for a non-existent crime.

FELICIANO, J., concurring: I concur in the result reached by the majority of the Court. I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand reexamination or clarification. I have in

mind in particular matters such as the correct or appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which, when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees? Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand, differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection. The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental nonretroactivity principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]). It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandezdoctrine in terms which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question would be whether the new doctrine here proposed by the Government could fairly have been

derived by a man of average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached by the Court and its several Members today. Finally, there appears to be no question that the new doctrine that the Government would have us discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent accused than the simple application of the Hernandez doctrine that murders which have been committed on the occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion. I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting: I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it conformable with accepted and well-settled principles of criminal law and jurisprudence. To my mind, the Hernandez doctrine should not be interpreted as an allembracing authority for the rule that all common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have farreaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the Hernandez doctrine that needs clarification. With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should have further considered that distinction between acts or offenses which are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as elements thereof. The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed against Government forces and property in the course of rebellion are properly considered indispensable overt acts of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed against the civilian population in the course or on the occasion of rebellion and in

furtherance thereof, may be necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply. The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners. I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the majority on the broad application of the Hernandez doctrine. BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner. I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings. It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be certified to the respondent trial court (Section 14, Rule 102). Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled in the tomes of our jurisprudence as correct doctrine.

the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion."

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3 whether committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion includes murder, among other possible crimes.

I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully described. 4 At any rate, the government need only amend the information by a clerical correction, since an amendment will not alter its substance. I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting: I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains binding doctrine operating to prohibit

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In theHernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is confronted with an original case, i.e., where an information has been recently filed in the trial court and the petitioners have not even pleaded thereto. Furthermore, the Supreme Court, in the Hernandez case, was "groundbreaking" on the issue of whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion complexed with murder, and multiple frustrated murder does not exist. And yet, notwithstanding these unmistakable and controlling beacon lightsabsent when this Court laid down theHernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are as null and void as the information on which they are anchored. And, since the entire question of the information's

validity is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court). I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and properinformation, for this entire exercise to merit the serious consideration of the courts. ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City, DISMISSED. Consequently, the petitioners should be ordered permanently released and their bails cancelled. Paras, J., concurs.

6 Rollo, G.R. No. 92163, pp. 305-359. 7 Originally a petition for certiorari and prohibition which the Court, upon motion of the petitioners, resolved to treat as a petition for habeas corpus; Rollo, G.R. No. 92164, pp. 128-129. 8 Rollo, G.R. No. 92163, pp. 407-411. 9 Fernan, C.J., and Narvasa, Cortes and Grino-Aquino, JJ. 10 Fernan, C.J. and Narvasa, J. 10-A Two Members a on leave. 11 Executive Order No. 187 issued June 5, 1987. 12 People vs. Hernandez, supra at 541-543. 13 Id., at 551.

Footnotes

14 Rollo, G.R. No. 92163, pp. 78-79 and 73-76. 1 99 Phil. 515 (1956). 2 People vs. Lava, 28 SCRA 72 (1956); People vs. Geronimo, 100 Phil. 90 (1956); People vs. Romagosa, 103 Phil. 20 (1958); and People vs. Rodriguez, 107 Phil. 659 (1960).

14 Supra, footnote 4. 15 Soliven vs. Makasiar, 167 SCRA 394. 17 Rollo, G.R. No. 92163, pp. 46-47.

3 Rollo, G.R. No. 92163, pp. 32-34.

18 Sec. 2, Rule 117, Rules of Court.

4 Rollo, G.R. No. 92163, pp. 34 et seq.

19 Ocampo vs. Bernabe, 77 Phil. 55.

5 Rollo, G.R. No. 92163, p. 26.

20 Rollo, G.R. No. 92164, pp. 124-125.

Melencio-Herrera, J., Opinion 1 "ART. 142-A-Cases where other offenses are committed.-When by reason or on the occasion of any of the crimes penalized in this Chapter, acts which constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender." Sarmiento, J., Concurring 1 99 Phil. 515 (1956). 2 Supra, 520. 3 Supra, 521. 4 US v. Santiago, 41 Phil. 793 (1917).

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-38538 April 15, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANDRES MANGLALLAN y ARDAN alias "Ka Elmer," VIRGILIO BALLESTEROS y ANDRADA alias 'Ka Felix' and CESAR ALVAREZ alias "Ka Karte," accused, ANDRES MANGLALLAN y ARDAN alias "Ka Elmer,"defendant-appellant. The Solicitor General for plaintiff-appellee. Ruben E. Agpalo for appellant.

GANCAYCO, J.: On September 3, 1972 in Barrio Punti East, Sta. Ana, Cagayan, Ka Daniel who appears to be the leader of the New People's Army (NPA) in the area directed Andres Manglallan, Cesar Alvarez, Domingo Ramos, and Virgilio Ballesteros, members of the NPA to go to Barrio Punti and kill one Apolonio Ragual who was suspected by Ka Daniel to be a Philippine Constabulary (PC) informer. Said four went to the barrio of Ragual, Manglallan carrying a Browning shotgun, Ramos a Thompson, Alvarez a carbine and Ballesteros, a homemade gun called Bulldog, They arrived at Punti at 9:00 A.M. and they saw Ragual at the river bank giving his carabao a bath. Ramos went to him and after a while shot him with his gun. Manglallan also shot him with his Browning followed with another shot by Alvarez, as a result of which Ragual

fell down and died. Manglallan then placed on the dead body of Ragual a writing and drawing made by their association warning the people and the PC of their activities. 1 Thereafter, the group returned and reported to Ka Daniel that Ragual was already dead. Dr. Leonides Flores, the Municipal Health Officer of Sta. Ana, Cagayan conducted a post-mortem examination on the remains of Apolonio Ragual at about 4:00 P.M. of the same day, after which he issued an autopsy report 2 showing multiple gunshot wounds suffered by the deceased and finding the cause of death to be severe hemorrhage, shock secondary to multiple gunshot wounds. An information was filed by the provincial fiscal in the Court of First Instance of Cagayan charging Andres Manglallan, Virgilio Ballesteros, and Cesar Alvarez of the crime of murder. However, upon arraignment on accused Manglallan and Ballesteros were present as Alvares was at large. Upon motion of the fiscal, Ballesteros was discharged from the information as a government witness. The trial on the merits proceeded as against Manglallan after which a decision was rendered on March 19, 1974, the dispositive part of which reads as follows: WEREFORE, in view of the foregoing considerations, the Court finds the accused Andres Manglallan guilty beyond reasonable doubt of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, without any aggravating or mitigating circumstance offsetting each other, and hereby sentences him to suffer reclusion perpetua to indemnify the heirs of the victim in the amount of TWELVE THOUSAND PESOS (P12,000.00) without, however, serving subsidiary imprisonment in case of insolvency; and to pay the costs. The accused being a detention prisoner and having signed the agreement required of detention prisoners by Article 29 of the Revised Penal Code, As amended by Republic Act No. 6127, is credited with the whole period of his preventive imprisonment in the service of his sentence. Not satisfied therewith, said accused interposed this appeal alleging that the lower court committed the following assigned errors:

First Assignment of Error THE LOWER COURT ERRED IN NOT HOLDING THAT THE CRIME COMMITTED IS NOT MURDER BUT A POLITICAL OFFENSE WHICH GIVES RISE TO THE QUESTION AS TO WHETHER IT FALLS UNDER THE ANTI-SUBVERSION ACT OR UNDER ARTICLES 134 AND 135 OF THE REVISED PENAL CODE. Second Assignment of Error THE LOWER COURT ERRED IN NOT HOLDING THAT DEFENDANT-APPELLANT COULD BE HELD LIABLE FOR ONLY MERE MEMBERSHIP IN THE NEW PEOPLE'S ARMY (NPA) WHICH IS PENALIZED BY ARRESTO MAYOR AND NOT FOR A GRAVER CRIME PENALIZED BY PRISION MAYOR TO DEATH. DEFENDANT-APPELLANT HAVING BEEN DENIED OF HIS STATUTORY RIGHT AND THE TWO-WITNESS REQUIREMENT OF THE ANTI- SUBVERSION ACT NOT HAVING BEEN COMPLIED WITH. Third Assignment of Error THE LOWER COURT ERRED IN GIVING FULL CREDENCE TO THE TESTIMONY OF BALLESTEROS AND IN NOT HOLDING, ASSUMMING REBELLION AS THE APPLICABLE OF TENSE. THAT DEFENDANTAPPELLANT COULD, IF AT ALL, BE HELD LIABLE MERELY AS AN ACCOMPLICE IN THE CRIME OF REBELLION. Fourth Assignment of Error THE TRIAL COURT ERRED IN NOT APPRECIATING VOLUNTARY SURRENDER AS A MITIGATING CIRCUMSTANCE.

After the briefs of the parties were filed, the defendant-appellant filed a motion to withdraw the appeal on October 25, 1977 as he had lost interest in the same and is convinced that the decision appealed from is in accordance with law and the evidence. The Solicitor General was required to comment on this motion and he recommended the denial of the motion to withdraw the appeal in view of the recommendation in the People's brief that accused-appellant should be convicted of the lesser offense of simple rebellion which is more favorable to the appellant. The counsel de oficio for the appellant, in reply to the said comment stated that he agrees with the Id comment of the Solicitor General and asked that the appeal be decided at the earliest possible time. Appellant filed a separate manifestation and motion stating his interest to pursue the appeal. The motion was granted by the Court on January 25, 1982. Under the first assigned error, the appellant contends that the crime he committed is not murder but a political offense which gives rise to the question as to whether the same falls under the Anti-Subversion Act or under Articles 134 and 135 of the Revised Penal Code. The appellant admits that he was a member of the NPA then operating in the Cagayan area with Ka Daniel as their leader. He asserts that the NPA is the military arm of the Communist Party of the Philippines. 3 There is no question likewise that the killing of Apolonio Ragual by the appellant and his companions who were also members of the NPA upon orders of Ka Daniel was politically motivated. They suspected Ragual as an informer for the PC. In fact, after he was killed, they left a letter and a drawing on the body of Ragual as a warning to others not to follow his example. 4 In the case of People vs. Agarin, 5 which was a prosecution for murder, like the present case, where the accused Huk member with his companions killed the victim because he was a PC informer, this Court held that the crime committed is simple rebellion and not murder, as follows: The offense perpetrated by appellant is murder, qualified by abuse of superior strength. Considering, however, the fact that the killing was committed as a means to or in the furtherance of the subversive ends of the Huk balahaps (HUKS) because the Id appellant and his companions,

Commander Manaing and Commander Vida suspected the deceased to have acted as a spy and had informed the BOT and Government agencies regarding the presence of the Huks in that region, we find the Id Federico Agarin alias Commander "Smith" guilty of the crime of simple rebellion only (People vs. Hernandez, et al., 99 Phil. 515; 52 Off. Gaz. [12] 5506; Secs. 4 and 5, Rule 116; People vs. Melecio Aquino, et al., 108 Phil 814; 57 Off. Gaz [51] 91 80)'" [People vs. Agarin, 109 Phil. 430, 436]" The Court, therefore, sustains the contention of the appellant that the crime he committed is not murder but the crime of rebellion punishable under Articles 134 and 135 of the Revised Penal Code. The Court does not agree, however, with the allegation of the appellant that he could be held liable only for being a member in the NPA punishable under the Anti-Subversion Act. More than being a member of the NPA, which is a subversive organization, the appellant took up arms against the government by committing murder, as in this case, which thus holds him liable for the graver offense of rebellion. Nor can the argument of the appellant that he should be held liable as an accomplice be sustained. The records show without doubt that together with his companions, they killed the victim, the appellant being among those who shot him and thereafter they placed the letter and drawing on top of the body of the deceased as a warning against others. His participation in the commission of the offense is obviously that of a principal and not that of a mere accomplice. Under the fourth assigned error, the appellant claims that he should be credited the mitigating circumstance of voluntary surrender,. Evidence has been adduced by the appellant that after several months of hiding after the killing, he voluntarily surrendered to Lt. Lee Barnes. 6

(b) That the offender surrendered himself to a person in authority or the latter's agent; and (c) The surrendered was voluntary. 7 All the above elements are present in the case. The appellant should thus be credited this mitigating circumstance. WHEREFORE, the judgment appealed from is hereby modified by convicting the accused-appellant of the crime of rebellion punishable under Article 135 of the Revised Penal Code and not of murder. Considering that the commission of the offense was attended by the mitigating circumstance of voluntary surrendered, and applying the Indeterminate Sentence Law, appellant is hereby imposed an indeterminate penalty of imprisonment of Two (2) Years and Four (4) Months of prision correccional as minimum to Six (6) Years and One (1) Day of prision mayoras maximum to pay a fine of P10,000.00 and to indemnify the heirs of the deceased Apolonio Ragual in the amount of P30,000.00. As the accused-appellant is a detention prisoner in the New Bilibid Prisons and he appears to have been under detention for a period beyond the period of the penalty herein-above imposed on him, he is hereby ordered Released immediately from detention unless he is being held for some other charges. This Decision is immediately executory. SO ORDERED. Teehankee, C.J., Narvasa, Cruz, and Griño Aquino, JJ., concur.

Footnotes 1 Exhibits A & B. 2 Exhibit C.

The elements of this mitigating circumstance. (a) The offender had not actually been arrested;

3 Presidential Proclamation No. 1081 [1972]; People vs. Ferrer, 38 SCRA 382, 405.

4 TSN, February 18, 1974, p. 6; February 20, 1974, pp. 56; Exhibits A & B. 5 People vs. Agarin, 109 Phil. 430; see also People vs. Aquino and Cortes, 108 Phil. 814. 6 TSN., February 20, 1974. 7 People vs. Hanasan, 29 SCRA 534.

MALCOLM, J.: No more serious violation of the criminal law of these Island and nor more wanton defiance of the law by the very men whose sworn duty it was to enforce the law, has ever been brought before this court than is now presented for consideration in this case. To avenge a fancied wrong, member of the Philippine Constabulary murdered six member of the police force of the City of Manila, among them the respected Captain William E. Wichman, assistant chief of police, and two private citizens, and gravely wounded three other civilians. To the task of reviewing the facts, of preparing an opinion on the pertinent issues, and of rendering judgement, if no reversible error be found, regarding the appropriate penalty, we no propose to address ourselves. STATEMENT OF THE CASE AND OF THE FACTS On December 13, 1920, policemen of the city of Manila arrested a woman who was a member of the household of a Constabulary soldier stationed at the Santa Lucia Barracks in this city. The arrest of the woman was considered by some of the Constabulary soldiers at Santa Lucia Barracks as an outrage committed by the policemen, and it instantly gave rise to friction between members of the Manila police department and members of the Philippine Constabulary.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1755

March 4, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GRACIANO L. CABRERA, ET AL., defendants-appellants. Vicente Sotto for appellants. Acting Attorney-General Tuason for appelle.

The next day, December 14, at about sunset, a policeman named Artemio Mojica, posted on Calle Real, in the District of Intramuros, city of Manila, had an encounter with various Constabulary soldiers which resulted in the shooting of private Macasinag of the Constabulary. Private Macasinag was seriously, and as afterwards appeared, mortally wounded. The encounter between policeman Mojica and other companions of the Manila force and private Macasinag and other companions of the Constabulary, with its grave consequences for the Constabulary soldier, engendered a deep feeling of resentment on the part of the soldiers at Santa Lucia Barracks. This resentment was soon converted into a desire for revenge against the police force of the city of Manila. The officers of the Constabulary appear to have been aware of the state of excitement among the soldiers at Santa Lucia Barracks because almost immediately after the shooting of private Macasinag, Captain Page, the commanding officer of the barracks, increased the number of guards, and confined all the soldiers in the barracks.

During the afternoon of the next day, December 15, 1920, a rumor spread among the soldiers in San Lucia Barracks to the effect that policeman Mojica was allowed to continue on duty on the streets of Intramuros and that private Macasinag had died as a consequence of the shot he received the night before. This rumor contributed in no small degree in precipitating a movement for reprisal by the Constabulary soldiers against the policeman. At about 7 o'clock in the evening of the same day, December 15, 1920, corporal Ingles of the Fourth Company approached private Nicolas Torio who was then the man in charge of quarters, and asked him to let then the man in charge of quarters of the Fourth Company. Private Torio was easily persuaded to permit private Francisco Garcia of the Second Company to saw out the window bars of the quarters in his charge, and to allow soldiers to escape through the window with rifles and ammunition under the command of their sergeants and corporals. When outside of the quarters, these soldiers divided into groups for attack upon the city police force. On platoon of Constabulary soldiers apparently numbering about ten or twelve, on Calle Real, Intramuros, fired in the direction of the intersection of Calles Real and Cabildo where an American policeman named Driskill was stationed, and was talking with a friend named Jacumin, a field clerk in the United States Army. These two men were shot and died soon afterwards. To the credit of policeman Driskill be it said, that although a dying conditions and in the face of overwhelming odds, he valiantly returned the fire with his revolver. Jacumin was killed notwithstanding that in response to the command of the Constabulary, "Hands up!." he elevated both arms. A street car happened to stop at this time at the corner of Calles Real and Cabildo. Without considering that the passengers in the car were innocent passersby, the Constabulary squad fired a volley into the car, killing instantly the passenger named Victor Torres and gravely wounding three other civilian passengers, Gregorio Cailles, Vicente Antonio, and Mariano Cortes. Father Jose Tahon, a priest of the Cathedral of Manila, proved himself a hero on this occasion for, against the command of the Constabulary, he persisted in persuading them to cease firing and advanced in order the he might administer spiritual aid to who had been wounded. The firing on Calle Real did not end at that time. Some minutes later, Captain William E. Wichman, assistant chief of police of the city of Manila, riding in a motorcycle driven by policeman Saplala, arrived at the corner of Calles Real and Magallanes in Intramuros, and a volley of shots by Constabulary soldiers resulted in the instantaneous death of Captain Wichman and the death shortly afterwards of patrolman Saplala.

About the same time, a police patrol came from the Meisic police station. When it was on Calle Real near Cabildo, in Intramuros, it was fired upon by Constabulary soldiers who had stationed themselves in the courtyard of the San Agustin Church. This attack resulted in the death of patrolmen Trogue and Sixon. Another platoon of the Constabulary, between thirty and forty in number, had, in the meantime, arranged themselves in a firing line on the Sunken Gardens on the east side of Calle General Luna opposite the Aquarium. From this advantageous position the Constabulary fired upon the motorcycle occupied by sergeant Armada and given by policeman Policarpio who with companions were passing along Calle General Luna in front of the Aquarium going in the direction of Calle Real, Intramuros. As a result of the shooting, the driver of the motorcycle, policeman Policarpio, was mortally wounded. This same platoon of Constabulary soldiers fired several volleys indiscriminately into the Luneta police station, and the office of the secret service of the city of Manila across Calles General Luna and Padre Burgos, but fortunately no one was injured. General Rafael Crame, Chief of the Constabulary, and Captain Page, commanding officer of the Santa Lucia Barracks, rounded up some of the soldiers one after another returned to the Barracks where they were disarmed. No list of the names of these soldiers was, however, made. In the morning of the next day, December 16, 1920, Colonel Lucien R. Sweet of the Constabulary in compliance with order from General Crame, and assisted by other Constabulary officers and later by the fiscals of the city of Manila, commenced an investigation of the events of the night before. He first ordered that all the soldiers in Santa Lucia Barracks, at that time numbering some one hundred and eighty, be assembled on the parade ground, and when this was done, the soldiers were separated into their respective companies. Then Colonel Sweet, speaking English, with assistance of Captain Silvino Gallardo, who interpreted his remarks into Tagalog, made two brief statements. The first was, in effect: "Those of you who for one reason or another left the Barracks last night, may step forward." Responding to this order, nearly one hundred moved to the front. Thereupon, Colonel Sweet said to these: "For the good of the body to which you belong, of your companions, and of yourselves, those who participated in the riot last night may take another step forward." Seventy-three soldiers then advance a step. The names of four other who took part but who were not present were taken down by Captain Gallardo.

What occurred on the occasion above described can best be told in the exact language of Colonel Sweet: After conferring or speaking among themselves, for probably two minutes, I inferred or observed from their attitude that they were waiting for a call to order. Accordingly, I called them to order and some eight-five took one step forward. After that I called them to attention; I advised them that for the good of themselves and their companions who did not participate in the shooting of the night before, for the good of the body and also of all parties interested, those who took part in the shooting of the night before should take another step forward. I spoke so rapidly that it is impossible for me to repeat exactly what I told them that morning. I spoke them that morning approving the decision of those of them who took one step forward. I believe that some seventy-two (72) took one step forward as admitting that they took part in the shooting on the night before. I then asked if they brought with the, ammunition or arms not belonging to them. They answered viva voce that each one of them carried their own arms and ammunition. I asked them if there was any one who was with them the night before but who was not present that morning; whereupon, one or two soldiers mentioned the names of some who were not then present. That is how the total number of those who left and who were not in the Barracks reached seventy-seven (77). The statements of the seventy-seven soldiers were taken in writing during the afternoon of the same day, December 16. The questionnaire prepared by the fiscal of the City of Manila was the same for each soldier, and was filled out either in English or Spanish. The questions and answers were, however, when requested by the soldiers, translated into their dialects Each statement was signed by the soldier making it in the presence of either two or three witnesses. Although the answers to the questions contained in these statements vary in phraseology, in substance they are the same. One of them, the first in numerical order, that of sergeant Graciano L. Cabrera, taken in Spanish and interpreted into Tagalog, may be selected as typical of the rest, and is here literally transcribed: 1. Give your name, age, status, occupation, and residence. — Graciano L. Cabrera, 24 years old, single, sergeant of the first company of the General Service, of the Constabulary, residing in Santa Lucia Barracks.

2. To what company of the Philippine Constabulary do you belong? — First company, General Service of the Constabulary. 3. Where were you garrisoned yesterday afternoon, December 15, 1920? — In the Santa Lucia Barracks. 4. Did you leave the barracks at about 7 o'clock yesterday evening? — Yes, sir. 5. For what reason, and where did you go? — We went in search of the policemen and secret service men of Manila. It has been sometime now since we have been having standing grudge against the police of Manila. The wife of one of our comrades was first arrested by the policemen and then abused by the same; and not content with having abused her, they gave this woman to an American; after this incident, they arrested two soldiers of the Constabulary, falsely accusing them of keeping women of bad reputation; after this incident, came the shooting of Macasinag, a shooting not justified, because we have come to know that Macasinag did nothing and the policemen could have arrested him if they desired. Moreover, the rumor spread among us that the police department of Manila had given orders to the policemen to fire upon any constabulary soldier they found in the streets, and we believe that the rumor was not without foundation since we noticed that after the Macasinag affair, the policemen of Manila, contrary to the usual practice, were armed with carbines or shot-guns. For this reason we believed that if we did not put an end to these abuses of the policemen and secret service men, they would continue abusing the Constabulary. And as an act of vengeance we did what we had done last night. 6. How did you come to join your companions who rioted last night? — I saw that almost all the soldiers were jumping through the window and I was to be left along in the barracks and so I followed. 7. Who asked you to join it? — Nobody. 8. Do you know private Crispin Macasinag, the one who was shot by the Manila police the night before last on Calle Real? — Yes, sir, I know him because he was our comrade.

9. Were you offended at the aggression made on the person of said soldier? — Indeed, yes, not only was I offended, but my companions also were.

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

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

12. State the streets of the city where you fired shots. — I cannot give an exact account of the streets where I fired my gun. I had full possession of my faculties until I reached Calle Victoria; afterwards , I became aware that I was bathed with perspiration only upon reaching the barracks.

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

13. What arms were you carrying and how much ammunition or how many cartridges did you use? — I carried a carbine; I cannot tell precisely the number of cartridges I used; however, I placed in my pocket the twenty cartridges belonging to me and I must have lost some on the way.

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

10. State how many shots you fired, if any, during the riot last night. — I cannot tell precisely the number of shots I fired because I was somewhat obfuscated; all I can assure you is that I fired more than once.

14. How did you manage to leave the barracks? — By the, window of the quarters of the Fourth Company, through the grating which I found cut off. 15. Are you above statements made by you, voluntarily freely, and spontaneously given? — Yes, sir. 16. Do you swear to said statements although no promise of immunity is made to you? — Yes, sir; I confirm them, being true. (Sgd.) G. L. CABRERA Witnesses: (Sgd.) S. GALLARDO LAURO C. MARQUEZ.

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

of the Hon. George R. Harvey who presided in the sedition case. As stipulated by the Attorney-General and counsel for the defendants, the proof is substantially the same in both cases. In all materials respects, we agree with the findings of fact as made by the trial court in this case. The rule is again applied that the Supreme Court will not interfere with the judgement of the trial court in passing upon the credibility of the opposing witnesses, unless there appears in the record some fact or circumstances of weight and influence which as been overlooked or significance of which has been, interpreted. (U. S. vs. Ambrosio and Falsario [1910], 17 Phil., 295; U. S. Remegio [1918], 37 Phil., 599.) In the record of the case at bar, no such fact or circumstance appears. OPINION An assignment of six errors is made by the counsel for the defendants and appellants. Two of the assignments of error merit little or no consideration. Assignments of error 5 and 6 (finding their counterpart in assignment of error No. 2 in the sedition case), in which it is attempted to establish that Vicente Casimiro, Juan Noromor, Salvador Gregorio, Paciano Caña, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero Rodriguez, Roberto Palabay, Roque Ebol, Ildefonso dela Cruz, Cipriano Lizardo, Primitivo E. Vallado, Maximo Perlas and Benigno Tagavilla did not leave the Santa Lucia Barracks on the night of the tragedy, is predicated on the special defense raised in the lower court for these defendants and which was found untenable by the trial court. Any further discussion of this question falls more appropriately under our consideration of assignment of error No. 3, relating to the conspiracy between the accused. Assignment error No. 4 relating to the judge deciding the case without taking into consideration the transcript of the stenographic notes in the case for sedition does not constitute reversible error. Counsel for the defendants is the first to admit by stipulation that the facts in the two case are substantially the same. The three pertinent issues in this case relate to: (1) The admission of Exhibits C to C-76 of the prosecution (assignment error No. 2, murder case; assignment of error No. 1, sedition case); (2) the conspiracy between the accused (assignment of error No. 3, murder case; assignment of error No. 4, sedition case); and (3) the defense of double jeopardy (assignment of error No. 1, murder case). 1. THE ADMISSION OF EXHIBITS C TO C-76

Appellants claim that fraud and decit marked the preparation of the seventyseven confession. It is alleged that some of the defendants signed the confessions under the impression that those who had taken part in the affray would be transferred to Mindanao, and that although they did not in fact so participate, affirmed that they did because of a desire to leave Manila; that others stepped forward "for the good of the service"; while still other simply didn't understand what they were doing, for the remarks of Colonel Sweet were made in English and only translated into Tagalog, and their declarations were sometimes taken in a language which was unintelligible to them. Counsel evidence of Exhibits C to C-76, and the Attorney-General is wrong in stating otherwise. Section 4 of Act No. 619 entitled "An Act to promote good order and discipline in the Philippines Constabulary" and reading: "No confession of any person charged with crime shall be received as evidence against him by any court of justice unless it be first shown to the satisfaction of the court that it was freely and voluntarily made and not the result of violence, intimidation, threat, menace, or of promises or offers of reward or leniency," was repealed by the first Administrative Code. But the same rule of jurisprudence continues without the law. As has been repeatedly announced by this and other courts, "the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort." If the confession is freely and voluntarily made, it constitutes one of the most effectual proofs in the law against the party making it. (Wilson vs. U. S. [1895], 162 U. S., 613.) The burden of proof that the confession was not voluntarily made or was obtained by undue pressure is on the accused. (U. S. vs. Zara [1921], 42 Phil., 308.) What actually occurred when the confessions were prepared is clearly explained in the record. The source of the rumor that the defendants would be transferred to Mindanao if they signed the confessions, is not established. On the contrary it is established that before the declarations were taken, Lieutenant Gatuslao in response to a query had shown the improbability of such a transfer. With Military where the dialect is Tagalog, all of the defendants must have understood the substantial part of Colonel Sweet's remarks. What is more important, there could be no misunderstanding as to the contents of the confessions as written down. In open court, sixty-nine of the defendants reiterated their guilt. The officers who assisted in the investigation were of the same service as the defendants and would naturally not be inclined to prejudice the rights of their own men. I must also be remembered that each and every one of the defendants was a member of the Insular police force. Because of the very nature of their duties and because of their practical experience, these Constabulary

soldiers must have been aware of the penalties meted out for criminal offenses. Every man on such a momentous occasion would be more careful of his actions than ordinarily and whatever of credulity there is in him, would for the moment be laid aside. Over and above all desire for a more exciting life, over and above the so-called espiritu de corps, is the instinct of selfpreservation which could not but be fully aroused by such stirring incidents too recent to be forgotten as had occurred in this case, and which would counsel prudence rather than rashness; secretiveness rather than garrulity. These confessions contain the statements that they were made freely and voluntarily without any promise of immunity. That such was the case was corroborated by the attesting witnesses whose credibility has not been successfully impeached. We rule the trial court did not err in admitting Exhibits C to C-76 of the prosecution.

that object. (5 R. C. L., 1088.) Applied to the facts before is, it is incontestable that all of the defendants were imbued with the same purpose, which was to avenge themselves on the police force of the city of Manila. A common feeling of resentment animated all. A common plan evolved from their military training was followed. The effort to lead the court into the realm of psychology and metaphysics is unavailing in the face of actualities. The existence of a joint assent may be reasonably inferred from the facts proved. Not alone are the men who fired the fatal shots responsible, not alone are the men who admit firing their carbines responsible, but all, having united to further a common design of hate and vengeance, are responsible for the legal consequences therefor. We rule that the trial court did not err in declaring that there was a conspiracy between the accused. 3. THE DEFENSE OF DOUBLE JEOPARDY

2. THE CONSPIRACY BETWEEN THE ACCUSED The contention of the appellants is that evidence is lacking of any supposed connivance between the accused. Counsel emphasizes that in answer to the question in the confession, "Who asked you to join in the riot?," each of the accused answered, "Nobody." The argument is then advanced that the appellants cannot be held criminally responsible because of the so-called psychology of crowds theory. In other words, it is claimed that at the time of the commission of the crime the accused were mere automatons obeying the insistent call of their failure of evidence and the positive evidence, counsel would deduce the absence of conspiracy between the accused. It is a primary rule that if two or more persons combine to perform a criminal act, each is responsible for all the acts of the others done in furtherance of the common design; and "the results is the same if the act is divided into parts and each person proceeds with his part unaided." (U. S. vs. Maza [1905], 5 Phil., 346; U. S. vs. Remigio [1918], 37 Phil., 599; decision of the supreme court of Spain of September 29, 1883; People vs. Mather [1830], 4 Wendell, 299.) Conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. If it be proved that the defendants pursued by their acts the same object, one performing one part and another part of the same, so as to complete it, with a view to the attainment of that same object, one will be justified in the conclusion that they were engaged in a conspiracy to effect

The constitutional inhibition in the Philippine Bill of Rights is "that no person for same offense shall twice be put in jeopardy of punishment.," Somewhat in application thereof, the code of Criminal Procedure provides that "When a defendant shall have been convicted or acquitted or once placed in jeopardy upon an information or complaint, the conviction, acquittal or jeopardy shall be a bar to another information or indictment for the offense charged, or for an attempt to commit the same, or for a frustration thereof, or for any offense necessarily therein included of which he might been convicted under such complaint or information." (Sec. 26.) The guaranty in Philippine organic and statutory law relating to double jeopardy has received controlling interpretation both by the Supreme Court of the Philippines and the Supreme Court of the United States. The prohibition is against a second jeopardy for the same offense. To entitle a defendant to plead successfully former jeopardy, the offense charge in the two prosecutions must be the same in law and in fact. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. The same acts may violate two or more provisions of the criminal law. When they do, a prosecution under one will not bar a prosecution under another. In corroboration and in exemplification of the rules pertaining to the subject of double jeopardy, we have only to turn to leading decisions of the United States Supreme Court on Philippine appeals. In Flemister vs. United States ([1907], 207 U. S., 372),1 it was held that treating as two different offenses

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

crime against a crime directed against the existence of the State, the authority of the government, and the general public tranquillity; murder is a crime directed against the lives of individuals. (U. S. vs. Abad [1902], 1 Phil., 437.) Sedition in its more general sense is the raising of commotions or disturbances in the state' murder at common law is where a person of sound mind and discretion unlawfully kills any human being, in the peace of the sovereign, with malice aforethought, express or implied.

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

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

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

The offenses charged in the two informations for sedition and murder are perfectly distinct in point of law however nearly they may be connected in point of act. Not alone are the offense eo nomine different, but the allegations in the body of the informations are different. The gist of the information for sedition is the public and tumultuous uprising of the constabulary in order to attain by force and outside of legal methods the object of inflicting an act of hate and revenge upon the persons of the police force of the city of Manila by firing at them in several places in the city of Manila; the gist of the information in the murder case is that the Constabulary, conspiring together, illegally and criminally killed eight persons and gravely wounded three others. The crimes of murder and serious physical injuries were not necessarily included in the information for sedition; and the defendants could not have been convicted of these crimes under the first information.

We rule that the trial court did not err in not allowing the defense of double jeopardy. JUDGMENT The persistent effort of counsel to protect the interest of his client cannot be permitted to becloud the prominent facts of the record. This is as clear a case of cold-blooded murder as ever came to our attention. The judicial archives of the Supreme Court of the Philippines Islands, for the full extent of its existence extending over more than two decades, can be searched in vain for another case which compares with the instant one either in certainty as to guilt or in an unwavering necessity for a severe sentence. Not the learned briefs of the counsel for the accused and for the people, not the

eloquent pleas on the hand for mercy and on the other for conviction, not the application of various legal authorities, not even the voluminous transcript of the oral testimony, either separately or all combined, constitute the sole elements which irresistibly move us toward a stern judgment, but the most eloquent pleaders for justice top the dead and safety for the living come from the silent photographs of the dead and safety for the living come from the silent photographs of the dead introduced in evidence under the prosaic denomination of Exhibits J, K, LL, M, N, Ñ, and O. The bloody spot on the escutcheon of an otherwise great organization must be removed. It is a disagreeable duty, therefore, which the members of this court are called upon to perform. But that it is disagreeable should not of course swerve us from its performance. Were cases of this nature allowed to pass without condemnation, the lives of mankind would constantly be imperilled and there would be no security in the State, for its peace and tranquility would be upset and the authority of the Government would be put at naught by the very agents of law and order who have sworn to protect it. The courts were instituted precisely to function in times of peril to the State, to protect the rights of the people, to mete out punishment to those who have rendered it unsafe for individuals to live at peace with their fellowmen. With the determination of the trial court as to the circumstances which fix the degree of the penalty, we are, generally speaking, in accord. The circumstance of evident premeditation was found to exist, thus qualifying the crime as that of murder. All the actions of the accused demonstrate that their purpose was to kill any members of the city police whom they should meet. A considerable number of the accused in their confessions gave as the reason for the affray the desire to revenge themselves on the city police. One of them while marching through the streets was heard to exclaim "They killed one of us; we will kill ten (policemen) for one." Another was heard to exclaim, "Al cuartel!" and this was repeated by his companions, "Al cuartel!" The trial judge found present as circumstances which aggravate criminal liability, that the crime was committed in the nighttime and that advantage was taken of superior strength, but, resolving the doubt in favor of the accused, was unable to find that the act was committed with treachery. We concur with His Honor, Judge Imperial. Advantage was taken of the shades of night in order to better serve the unlawful purpose. Seventy-seven armed Constabulary soldiers in military formation were vastly superior in number and equipment to the policemen whom they happened to meet. The trial judge found present no circumstance which would mitigate the criminal liability of the sergeants and corporals, but did estimate as a

mitigating circumstance, in the cases of the privates, that provided by article 11 of the Penal Code, as amended, relating to the degree of instruction and education of the offenders. Certain members of the Court entertain an identical opinion, while other members take a contrary view. However, the result will be the same, since there is not a unanimous vote with regard to the propriety of the imposition of the death penalty on the private soldiers. Both the trial judge in the sedition case and the trial judge in the murder case found a difference between the situation of the non-commissioned officers and of the common soldiers. The opinion was expressed by the two judges that the sergeants and corporals among the defendants deserved a larger measure experience of the non-commissioned officers and their more responsible positions, we feel that this is a proper appreciation of the facts. The trial judge found the crimes as falling within the provisions of article 89 of the Penal Code. Certain members of the court agree. Other members disagree and would make use of the provisions of articles 87 and 88 of the Code. At least such doubt as exists should be resolved in favor of the accused, and this means that, in conformity with the provisions of article 87, they are guilty of the crimes of multiple murder with grave injuries. The penalty is then death for the eleven sergeants and corporals, and cadena perpetua, imprisonment for a maximum period of forty years, for the sixty-six private soldiers. (See U. S. vs. Balaba [1917], 37 Phil., 260.) The result is to modify the judgement appealed from by sentencing each of the Constabulary soldiers Patricio Rubio, Mariano Aragon, Silvino Ayangco, Guillermo Inis, Julian Andaya, Crispin Mesaluche, Prudencio Tasis, Silvino Bacani, Salvador Gregorio, Juan Noromor, Petronilo Antonio, Patricio Bello, Nemesio Decena, Baldomero Rodriquez, P. E. Vallado, Pedro Layola, Felix Cenon (Liron), Dionisio Verdadero, Francisco Garcia, Domingo Peroche, Florentino Jacob, Lorenzo Tumboc, Paciano Caña, Domingo Canape, Arcadio San Pedro, Daniel Coralde, Vicente Casimiro, Casiano Guinto, Nemesio Gamus, Luis Borja, Severino Elefane, Vicente Tabien, Victor Atuel, Venancio Mira, Benigno Tagavilla, Masaway, Marcos Marquez, Quinto Desierto, Teofilo Llana, Felix Lamsing, Victorino Merto, Timoteo Opermaria, Bernabe Sison, Eusebio Cerrudo, Julia Acantilado, Maximo Perlas, Ignacio Lechoncito, Pascual Dionio, Marcial Pelicia, Rafael Nafrada, Cornelio Ilizaga, Zacarias Baile, Roberto Palabay, Roque Ebol, Benito Garcia, Cipriano Lizardo, Ildefonso de la Cruz, Juan Miranda, Honorio Bautista, Crisanto Salgo, Francisco Luzano, Marcelino Silos, Graciano Zapata, Felizardo Favinal, Nicanor Perlas, and Gaspar Andrada, to suffer cadena perpetua, computed as imprisonment for forty years, and by sentencing each of the sergeants and corporals Graciano L. Cabrera, Pascual Magno, Bonifacio Eugenio, E. E. Agbulos, Francisco Ingles, Clemente Manigdeg,

Juan Abarquez, Pedro V. Mateo, Juan Regalado, Hilario, and Genaro Elayda, to suffer the death penalty as provided by law at Bilibid Prison, at such time as shall be fixed by the Judge of First Instance sitting in Sala No. 4 in the city of Manila, and as thus modified, judgment is affirmed with a proportional part of the costs of this instance against each appellant. So ordered. Araullo, C.J., Johnson, Street, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

Footnotes 1

11 Phil., 803.

2

41 Phil., 961.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-36426

November 3, 1932

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. IGNACIO NABONG, defendant-appellant. The appellant in his own behalf. Attorney-General Jaranilla for appellee.

STREET, J.: This appeal has been brought to reverse a judgment of the Court of First Instance of the Province of Nueva Ecija, finding the appellant, Ignacio Nabong, guilty of the offense of sedition under section 8 of Act No. 292, as amended by Act No. 1692, and sentencing him to pay a fine of two hundred pesos, with subsidiary imprisonment in case of insolvency, and requiring him to pay the costs. The appellant is an attorney engaged in the practice of law at Cabanatuan, in the Province of Nueva Ecija; and shortly before the incident with which we are here concerned, he had been retained to defend one Juan Feleo against a charge of sedition that had been preferred against him. Feleo was in those days a recognized leader of the communists in Nueva Ecija, and was related by marriage to the appellant. In the latter part of January, 1931, one Antonio D. Ora, the head of the communists in the Philippine Islands, died in the municipality of Santa Rosa, Nueva Ecija, and a necrological service in his memory was appointed by his followers to be held at Santa Rosa on the evening of January 30. The fact that said meeting was to be held came to the attention of Major Silvino Gallardo, in charge of the Philippine Constabulary in Cabanatuan, and he was informed that the red flag would be displayed in this meeting as an emblem of the communists. Major Gallardo accordingly had an interview with the provincial fiscal over the question whether the display of the flag should be prevented. The fiscal gave an opinion to the effect that the display of the red flag would be unlawful, and a copy of his opinion to this effect was placed in the hands of Major Gallardo. As Major Gallardo left the court-house, he met the appellant Nabong, and knowing the relation between the latter and Feleo, the leader of the communists in that province, Major Gallardo requested Nabong to interfere and prevent the display of the red flag at the meeting referred to. At this interview a copy of the fiscal's opinion was exhibited to Nabong and was read by him in the presence of various persons. After perusing the opinion Nabong said that he did not agree with the conclusion of the fiscal; and he, therefore, refused to accompany the Constabulary officers and the deputy provincial fiscal to Santa Rosa, stating that, if he were to go there, he would tell the communists that no law prohibited the display of the red flag and that he would induce them to display the same. He added that, if the communist were forbidden to use the flag, a disturbance would probably result.

The Constabulary officers, accompanied by the deputy fiscal Villamor, then departed for Santa Rosa. On their way they met Juan Feleo. In the interview that followed, Feleo was shown the opinion of the fiscal and he was requested to refrain from displaying the red flag at the meeting in Santa Rosa. Feleo promised to comply with this request, at least until he should have discussed the matter with the communist leaders in Manila. Although Nabong, as above stated, had refused to accompany Major Gallardo and his companions on their trip to Santa Rosa, he waited a while at Cabanatuan and afterwards left for Santa Rosa, arriving in time to participate in the meeting. At this meeting the red flag was displayed, contrary to the promise that Feleo had made to Major Gallardo; and upon learning of this fact, Major Gallardo, accompanied by several Constabulary officers and soldiers, repaired to the place in Santa Rosa where the meeting was being held. Upon arrival they found Feleo making a speech, and inasmuch as some of his utterances appeared to be of a seditious nature, Major Gallardo caused him to be arrested and removed from the place. At the same time the red flag which was being displayed on the platform was removed. Words spoken by Feleo on this occasion became the subject of prosecution in People vs. Feleo, G. R. No. 36428. 1 The arrest and removal of Feleo resulted in disorder among the people present at the meeting, and Major Gallardo found it advisable to make a short speech explaining why Feleo had been arrested. Then, seeing Nabong present, Major Gallardo told him that the disturbance would have been avoided if he (Nabong) had followed the suggestion made to him at Cabanatuan by Major Gallardo. Nabong replied that the communists had consulted him and that he had advised them to display the flag inasmuch as the act was not prohibited by any law. After Feleo had been arrested and taken away, the proceedings at the meeting were continued, and Jacinto Manahan spoke to the crowd. He was followed by Ignacio Nabong who delivered a speech in Tagalog, occupying some twenty minutes of time. In the course of this speech Nabong criticized the members of the Constabulary, using words substantially to the following effect:

They committed a real abuse in seizing the flag. The members of the Constabulary are bad because they shoot even innocent women, as it happened in Tayug. — In view of this, we ought to be united to suppress that abuse. Overthrow the present government and establish our own government, the government of the poor. Use your whip so that there may be marks on their sides. While Nabong was talking his words were attentively listened to by deputy fiscal Villamor, as well as Captain Cacdac and Lieutenant Arambulo, all of whom understood the Tagalog language. At the same time Captain Cacdac and Lieutenant Arambulo took notes of the substance of this part of the speech. Major Gallardo himself was also attentive to what was said, and from time to time, in the course of the speech, the major asked fiscal Villamor whether the language then being used was seditious. An affirmative answer to these questions was not given by the fiscal until that part of the speech was reached which contained the words above quoted, and after those words had been spoken Nabong was arrested. The proof in our opinion shows beyond reasonable doubt that the language imputed to the appellant was used by him; and this is corroborated by the circumstance that the appellant, upon the occasion of a meeting of the Nueva Ecija Bar Association in connection with this charge against Nabong, admitted having advocated in Santa Rosa the overthrow of the Government. Such advocacy by the defendant is confirmed by the testimony of Amado Estonilo, a witness for the defense. The testimony for the defense tends to show that Nabong went to Santa Rosa for the purpose of preventing a disturbance, and that upon arrival in Santa Rosa he attempted to prevail upon Feleo not to display the red flag. The proof for the defense further suggests that Nabong is well affected to the Government and that the language used by him was not intended to advocate the overthrow of the Government by force. The trial court seems to have attached little weight to this line of proof, and we are of the opinion that in this no error was committed. The language used by the appellant clearly imported an overthrow of the Government by violence, and it should be interpreted in the plain and obvious sense in which it was evidently intended to be understood. The word

"overthrow" could not have been intended as referring to an ordinary change by the exercise of the elective franchise. The use of the whip, an instrument designed to leave marks on the sides of adversaries, is inconsistent with the mild interpretation which the appellant would have us impute to the language. It was the purpose of the speaker, beyond a doubt, to incite his hearers to the overthrow of organized government by unlawful means. The words used by the appellant manifestly tended to induce the people to resist and use violence against the agents of the Constabulary and to instigate the poor to cabal and meet together for unlawful purposes. They also suggested and incited rebellious conspiracies, thereby tending to stir up the people against the lawful authorities and to disturb the peace of the community and the order of the Government, in violation of section 8 of Act No. 292 of the Philippine Commission, as amended. It is not necessary, in order to be seditious, that the words used should in fact result in a rising of the people against the constituted authorities. The law is not aimed merely at actual disturbance, and its purpose is also to punish utterances which may endanger public order. As was said by the Supreme Court of the United States in Gitlow vs. New York (268 U. S., 652, 669), "Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen." The question of the seditious character of the language imputed in the information to the appellant was raised by demurrer to the information, but the demurrer was overruled and the defendant was required to plead. There was no error in the action thus taken by the trial court. It is suggested in the appellant's brief that the provisions of our law relating to sedition are incompatible with that portion of section 3 of the Jones Law which declares that no law shall be passed abridging the freedom of speech or of the press, but the appellant's brief does not contain any argument tending to support this suggestion. At any rate the point is not well taken. The acts contemplated in the provisions of law relating to sedition are not protected by the constitutional provision, being abuses rather than the exercise of the right of speech and of the use of the press. It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose,

or unrestricted or unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. (Gitlow vs. New York, 268 U. S., 652, 666.) lawphil.net With respect to the penalty appropriate to this case, we are of the opinion that the trial court erred in not imposing upon the appellant imprisonment for a period of six months in addition to the fine of P200. In reaching this conclusion we bear in mind the fact that the appellant is a lawyer by profession, and by reason of his intelligence and education, as well as by the obligation of his office as a lawyer, it was his duty to exercise his influence in support of the State. Instead of this he appears to have made the cause of Feleo and other communistic agitators his own. In particular, it is proved that the display of the red flag upon the occasion referred to was due to his advice. In taking this position and uttering the seditious words which he is proved to have used, the appellant violated not only the written law but his oath of office as an attorney. The act which is the subject of this prosecution was committed prior to the coming into effect of the Revised Penal Code; but the penalty provided for this offense in article 142 in relation with article 139 of said Code is greater than that imposed by the trial court, and by this court, under section 8 of Act No. 292. It results that nothing beneficial to the appellant is revealed in the new Code. It being understood, therefore, that the penalty of imprisonment for six months is imposed upon the appellant in addition to the fine, the judgment appealed from is affirmed. So ordered, with costs against the appellant. Avanceña, C.J., Malcolm, Villamor, Ostrand, Abad Santos, Vickers, Imperial and Butte, JJ., concur.

Footnotes 1

Page 990, post.

EN BANC [G.R. No. L-8936. October 23, 1956.] THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FEDERICO GERONIMO alias Cmdr. OSCAR, ET AL., Defendants, FEDERICO GERONIMO alias Cmdr. OSCAR, Defendant-Appellant.

DECISION REYES, J. B. L., J.: In an information filed on June 24, 1954 by the provincial Fiscal in the Court of First Instance of Camarines Sur, Appellant Federico Geronimo, together with Mariano P. Balgos alias Bakal alias Tony, alias Tony Collante alias Taoic, alias Mang Pacio, alias Bonny Abundio Romagosa alias David, Jesus Polita alias Rex, Jesus Lava alias Jessie alias NMT, alias Balbas, alias Noli, alias Noli Metangere, alias NKVD, Juan Ocompo alias Cmdr. Bundalian, alias Tagle, Rosendo Manuel alias Cmdr. Sendong, alias Ruiz, Ernesto Herrero alias Cmdr. Ed, alias Rene, alias Eddy, Santiago Rotas alias Cmdr. Jessie, Fernando Principe alias Cmdr. Manding, Alfredo Saguni alias Godo, alias Terry, alias Terpy, Andres Diapera alias Maclang, alias Berto, alias Teny, Lorenzo Saniel alias Wenny, Silvestre Sisno alias Tomo, alias Albert, Teodoro Primavera alias Nestor, Lorenzo Roxas alias Argos, Vivencio Pineda alias Marquez, Pedro Anino alias Fernandez, Mauro Llorera alias Justo, Richard Doe alias Cmdr. Danny and John Doe alias Cmdr. Berion, alias Mayo, alias Cmdr. Paulito and many others, were charged with the complex crime of rebellion with murders, robberies, and kidnapping committed as follows:chanroblesvirtuallawlibrary xxx

xxx

xxx

“That on or about May 28, 1946 and for sometime prior and subsequent thereto continuously up to the present time in the province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court and in other municipalities, cities and provinces and other parts of the country where they have chosen to carry out their rebellious activities, the above-named accused being then ranking officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines (CPP) and the Hukbong Mapagpalaya Ng Bayan (HMB) or otherwise known as the Hukbalahaps (HUKS) the latter being the armed force of said Communist Party of the Philippines (CCP) having come to an agreement and decide to

commit the crime of Rebellion, and therefore, conspiring together and confederating among themselves with all of the thirty-one accused in criminal case Nos. 14071, 14282, 14315, 14270, 15344 and with all the accused in criminal case No. 19166 of the Court of First Instance of Manila with the other members, officers and/or affiliates of the Communist Party of the Philippines and the Hukbong Mapagpalaya Ng Bayan and with many others whose identities and whereabouts are still unknown, acting in accordance with their conspiracy and in furtherance thereof, and mutually helping one another, did, then and there, wilfully, unlawfully and feloniously, help, support, promote, maintain, direct and/or command the Hukbalahaps (HUKS) or the Hukbong Mapagpalaya Ng Bayan (HMB), to rise publicly and take arms against the government of the Republic of the Philippines, or otherwise participate in such public armed uprisings for the purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof as in fact the said ‘Hukbong Mapagpalaya Ng Bayan (HMB) or the Hukbalahaps’ (HUKS) pursuant to such conspiracy, have risen publicly and taken arms against the Government of the Republic of the Philippines to attain said purpose, by then and there making armed raids, sorties, and ambuscades, attacks against the Philippine Constabulary, the civilian guards, the Police and the Army Patrols and other detachments as well as upon innocent civilians, and as a necessary means to commit the crime of Rebellion, in connection therewith and in furtherance thereof, have then and there committed wanton acts of murder, pillage, looting, plunder, kidnapping and planned destructions of private and public property and plotted the liquidation of government officials, to create and spread disorder, terror, confusion, chaos and fear so as to facilitate the accomplishment of the aforesaid purpose, among which are as follows, to wit:chanroblesvirtuallawlibrary ‘1. That on or about April 28, 1949 at Kilometer 62 at Barrio Salubsob, municipality of Nueva Ecija, an undetermined number of HUKS led by Commanders Viernes, Marzan, Lupon and Mulong did, then and there, willfully, unlawfully and feloniously ambush, assault, attack and fired upon the party of Mrs. Aurora A. Quezon and her PC escort whom they considered as their enemies resulting in the killing of Mrs. Aurora A. Quezon, Baby Quezon, Mayor Bernardo of Quezon City, Major P. San Agustin, Lieutenant Lasam, Philip Buencamino III, and several soldiers and the wounding of General Jalandoni and Captain Manalang. ‘2. That on or about August 26, 1950 in Santa Cruz, Laguna, about one hundred armed HUKS with intent to gain and for the purpose of securing supplies and other materials for the support and meintenance of the Hukbong Mapagpalaya Ng Bayan (HMBS) did, then and there, willfully, unlawfully and feloniously and forcibly bringing the Cashier of the Provincial Treasury, Mr. Vicente Reventar from his house to the Provincial Capitol and at the point of guns forced him to open the Treasury Vault and took

therefrom Eighty Thousand Pesos (P80,000) consisting of various denominations and including Fifty, One hundred and Five-Hundred Peso Bills and also took away with them type- writers and other Office supplies which they found in the Provincial Capitol Building, burning and looting private buildings in towns. ‘3. That on or about the years 1951 to 1952 in the municipality of Pasacao, Camarines Sur, Philippines, a group of Armed Huks under Commander Rustum raided the house of one Nemesio Palo, a police sergeant of Libmanan, Camarines Sur and as a result, said HUKS were able to capture said Nemesio Palo and once captured, with evident premeditation, treachery and intent to kill, stab, shot and cut the neck of said Nemesio Palo thereby causing the instantaneous death of Nemesio Palo. ‘4. That on or about January 31, 1953, at barrio of Santa Rita, Del Gallego, Camarines Sur a group of HMBS with Federico Geronimo alias Commander Oscar ambushed and fired upon an Army Patrol headed by Cpl. Bayrante, resulting in seriously wounding of Pfc. Paneracio Torrado and Eusebio Gruta a civilian. ‘5. That on or about February 1954 at barrio Cotmo, San Fernando, Camarines Sur, a group of four HMBS led by accused Commander Oscar with evident premeditation, willfully, unlawfully and feloniously killed one Policarpio Tipay a barrio lieutenant.’“ (Appellee’s brief, pp. 1-8) Accused Federico Geronimo first entered a plea of not guilty to the information. When the case was called for trial on October 12, 1954, however, he asked the permission of the court to substitute his original plea with one of guilty, and was allowed to change his plea. On the basis of the plea of guilty, the fiscal recommended that the penalty of life imprisonment be imposed upon the accused, his voluntary plea of guilty being considered as a mitigating circumstance. Geronimo’s counsel, on the other hand, argued that the penalty imposable upon the accused was only prision mayor, for the reason that in his opinion, there is no such complex crime as rebellion with murders, robberies, and kidnapping, because the crimes of murders robberies, and kidnapping being the natural consequences of the crime of rebellion, the crime charged against the accused should be considered only as simple rebellion. On October 18, 1954, the trial court rendered judgment finding the accused guilty of the complex crime of rebellion with murders, robberies, and kidnappings; chan roblesvirtualawlibraryand giving him the benefit of the mitigating circumstance of voluntary plea of guilty, sentenced him to suffer the penalty of reclusion perpetua, to pay a fine of P10,000, to indemnify the heirs of the various persons killed, as listed in the information, in the sum of P6,000 each, and to pay the proportionate costs of the proceedings. From this judgment, accused Federico Geronimo appealed, raising the sole question of whether the crime committed by him is the

complex crime of rebellion with murders, robberies, and kidnappings, or simple rebellion. After mature consideration, a majority of seven justices 1 of this Court are of the opinion that the issue posed by Appellant has been already decided in the recent resolution of this Court in the case of People vs. Hernandez et al., (99 Phil., 529; chan roblesvirtualawlibrary21 Lawyers Journal, No. 7 [July 31, 1956], p. 316). As in treason, where both intent and overt act are necessary, the crime of rebellion is integrated by the coexistence of both the armed uprising for the purposes expressed in article 134 of the Revised Penal Code, and the overt acts of violence described in the first paragraph of article 135. That both purpose and overt acts are essential components of one crime, and that without either of them the crime of rebellion legally does not exist, is shown by the absence of any penalty attached to article 134. 2 It follows, therefore that any or all of the acts described in article 135, when committed as a means to or in furtherance of the subversive ends described in article 134, become absorbed in the crime of rebellion, and cannot be regarded or penalized as distinct crimes in themselves. In law they are part and parcel of the rebellion itself, and cannot be considered as giving rise to a separate crime that, under article 48 of the Code, would constitute a complex one with that of rebellion. The terms employed in the first paragraph of article 135 of the Revised Penal Code to describe the component of violence in the crime of rebellion are broad and general. The Spanish text (which is the one controlling, People vs. Manaba, 58 Phil. 665) states that the acts of the rebels may consists of — “Sosteniendo combate 3 con la fuerza leal, causando estragos en las propiedades, ejerciendo violencia grave, exigiendo contribuciones, o distroyendo caudales publicos de su inversion legitima.” If all the overt acts charged in the information against herein Appellant were committed for political ends or in furtherance of the rebellion, they come within the preceding description. Thus, count 4 (ambushing and firing upon army patrol) constitutes engaging in combat with the loyal troops; chan roblesvirtualawlibrarycount 2 (taking funds and equipment from the Provincial Treasury of Laguna) is diverting public funds from their ligitimate purpose; chan roblesvirtualawlibrarywhile the killings outlined in the other counts (1, 3 and 5) are instances of committing serious violence. The majority of the Court found no cogent reason for limiting “commission of serious violence” in article 135 to hostilities against the Government’s armed forces exclusively; chan roblesvirtualawlibraryfor in that case, the former expression would be redundant and mere duplication of “engaging in combat” with loyal troops, also described in the same article. If the infliction of “serious violence” was separately expressed in the law, it is because the

violence referred to is that inflicted upon civilians. Again, to restrict “serious violence” to acts short of homicide, is to unwarrantedly assume that the broad term “violencia grave” is used in the limited sense of “lesiones graves”, which in our Penal Code has a specialized signification. In truth, if physical injuries constitute grave violence, so would killing necessarily be, if not more. Additionally, it may be observed that rebellion is by nature a crime of masses or multitudes, involving crowd action, that cannot be confined a priori within predetermined bounds. (People vs. Hernandez, supra; chan roblesvirtualawlibraryPeople vs. Almazan, C. A., 31 Off. Gaz. 1932). Hence the broad terms employed by the statute. The prosecution insists that the “more serious” crime of murder cannot be justifiably regarded as absorbed by the lesser crime of rebellion. In the first place, it is not demonstrated that the killing of an individual is intrinsically less serious or less dangerous to society than the violent subversion of established government, which emperils the lives of many citizens, at least during the period of the struggle for superiority between rebels and loyalists. If, on the other hand, murder is punished by reclusion perpetua to death, and rebellion only by prision mayor, this leniency is due to the political purpose that impels every rebellious act. As noted by Groizard (“Codigo Penal de 1870”, Vol. 3, p. 239) — “El analisis de toda clase de delitos politicos ofrece para el jurisconsulto un resultado precioso, pues pone de relieve las diferencias cardinales que existen entre esta clase de hechos y los delitos comunes; chan roblesvirtualawlibraryentre los reos de aquellos crimenes y los reos de estos otros. Para los delitos comunes, la sociedad tiene una constante y energica reprobacion que no atenua ni el trascurso de tiempo ni el cambio de las ideas. Para los delitos politicos, no. Quien se atrevera si de honrado se precia, a hacer alarde de la amistad de un hombre condenado por robo o por asesinato? Y quien no ha tendido la mano cariñosa sin perder nada de respetabilidad, a algun reo de un delito politico en la serie continuada de revoluciones y contrarevoluciones que constituyen desgraciadamente los ultimos periodos de nuestra historia? La consumacion del delito y el exito de la rebelion, ya lo hemos dicho, para el reo politico, es mas que la impunidad, es el triunfo, es el poder, es el Gobierno, es casi la gloria. Pero no sucede lo mismo tratandose de delitos comunes:chanroblesvirtuallawlibrary la consumacion del delito ni apaga el remordimiento, ni aleja del criminal el peligro de la pena, ni mejora en nada su condicion respecto de la justicia. Hay, pues, entre el delito comun y el delito politico, entre las personas responsables de unos y otros diferencias sustanciales, y el mayor error que en el estado actual de los estudios juridicos puede cometer el legislador es no apreciar eses diferencias, sobre todo en la aplicacion de las penas.” And our history of three centuries of uninterrupted rebellions against sovereign Spain, until she was finally driven from our shores, suffices to

explain why the penalty against rebellion, which stood at reclusion temporal maximum to death in the Spanish Penal Code of 1870, was reduced only prision mayor in our revised Penal Code of 1932. In addition, the government counsel’s theory that an act punished by more serious penalty cannot be absorbed by an act for which a lesser penalty is provided, is not correct. The theory is emphatically refuted by the treatment accorded by the Penal Code to the crime of forcible abduction, for which the law imposes only reclusion temporal (article 342), notwithstanding that such crime necessarily involves illegal detention of the abducted woman for which article 267 of the same Penal Code fixes the penalty of reclusion temporal, in its maximum period, to death. The same situation obtains in the crime of slavery defined in article 272, whereby the kidnapping of a human being for the purpose of enslaving him is punished with prision mayor and a fine of not more than P10,000.00, when kidnapping itself is penalized by article 267 with a much higher penalty. And we have already pointed out in the Hernandez resolution that to admit the complexing of the crime of rebellion with the felonies committed in furtherance thereof, would lead to these undesirable results:chanroblesvirtuallawlibrary (1) to make the punishment for rebellion heavier than that of treason, since it has been repeatedly held that the latter admits no complexing with the overt acts committed in furtherance of the treasonous intent, and, in addition, requires two witnesses to every overt act which is not true in the case of rebellion; chan roblesvirtualawlibrary(2) to nullify the policy expressed in article 135 (R.P.C.) of imposing lesser penalty upon the rebel followers as compared to their leaders, because under the complexing theory every rebel, leader or follower, must suffer the heavier penalty in its maximum degree; chan roblesvirtualawlibraryand (3) to violate the fundamental rule of criminal law that all doubts should be resolved in favor of the accused:chanroblesvirtuallawlibrary“in dubiis reus est absolvendus”; chan roblesvirtualawlibrary“nullum crimen, nulla poena, sine lege.” Of course, not every act of violence is to be deemed absorbed in the crime of rebellion solely because it happens to be committed simultaneously with or in the course of the rebellion. If the killing, robbing, etc. were done for private purposes or profit, without any political motivation, the crime would be separately punishable and would not be absorbed by the rebellion. But ever then, the individual misdeed could not be taken with the rebellion to constitute a complex crime, for the constitutive acts and intent would be unrelated to each other; chan roblesvirtualawlibraryand the individual crime would not be a means necessary for committing the rebellion as it would not be done in preparation or in furtherance of the latter. This appears with utmost clarity in the case where an individual rebel should commit rape; chan roblesvirtualawlibrarycertainly the latter felony could not be said

to have been done in furtherance of the rebellion or facilitated its commission in any way. The ravisher would then be liable for two separate crimes, rebellion and rape, and the two could not be merged into a juridical whole. It is argued that the suppression in the present Penal Code of article 244 of the old one (article 259 of the Spanish Penal Code of 1870) indicates the intention of the Legislature to revive the possibility of the crime of rebellion being complexed with the individual felonies committed in the course thereof, because the suppressed article prohibited such complexing. The text of the suppressed provision is as follows:chanroblesvirtuallawlibrary “ART. 244. Los delitos particulares cometidos en una rebelion o sedicion, o con motivo de ellas, seran castigados respectivamente segun las disposiciones de este codigo. Cuando no puedan descubrirse sus autores, seran penados como tales los jefes principales de la rebelion o sedicion.” The first paragraph is to the effect that the “delitos particulares” (meaning felonies committed for private non-political ends, as held by the commentators Cuello Calon and Viada, since the Penal Code does not classify crimes into “general” and “particular”) are to be dealt with separately from the rebellion, punishment for each felony to be visited upon the perpetrators thereof. This paragraph has no bearing on the question of complex crimes, but is a mere consequence of the fact that the delicts committed for private ends bear no relation to the political crime of rebellion (other than a coincidence of time) and therefore must be separately dealt with. This is so obvious that, as Groizard pointed out (Vol. 3, p. 650), such action (their punishment as a private misdeed) would be taken by the courts even if this first paragraph of article 244 had not been written. Far more significant, in the opinion of the majority, is that our Revised Penal Code of 1932 did not revive the rule contained in the second paragraph of article 244 of the old Penal Code (Article 259 of the Spanish), whereby the rebel leaders were made criminally responsible for the individual felonies committed during the rebellion or on occasion thereof, in case the real perpetrators could not be found. In effect that paragraph established a command responsibility; chan roblesvirtualawlibraryand in suppressing it, the Legislature plainly revealed a policy of rejecting any such command responsibility. It was the legislative intent, therefore, that the rebel leaders (and with greater reason, the mere followers) should be held accountable solely for the rebellion, and not for the individual crimes (delitos particulares) committed during the same for private ends, unless their actual participation therein was duly established. In other words, the suppression of article 244 of the old Penal Code virtually negates the contention that the rebellion and the individual misdeeds committed during the same should legally constitute

one complex whole. Whether or not such policy should be maintained is not for the courts, but for the Legislature, to say.

752; chan roblesvirtualawlibraryU.S. vs. Agcaoili, roblesvirtualawlibraryU.S. vs. Jamad, 37 Phil., 305).

But while a majority of seven justices 4 are agreed that if the overt acts detailed in the information against the Appellant had been duly proved to have been committed “as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof”, then the accused could only be convicted of simple rebellion, the opinions differ as to whether his plea of guilty renders the accused amenable to punishment not only for rebellion but also for murder or other crimes.

In view of the foregoing, the decision appealed from is modified and the accused convicted for the simple (non-complex) crime of rebellion under article 135 of the Revised Penal Code, and also for the crime of murder; chan roblesvirtualawlibraryand considering the mitigating effect of his plea of guilty, the accused-Appellant Federico Geronimo is hereby sentenced to suffer 8 years of prision mayor and to pay a fine of P10,000, (without subsidiary imprisonment pursuant to article 38 of the Penal Code) for the rebellion; chan roblesvirtualawlibraryand, as above explained, for the murder, applying the Indeterminate Sentence Law, to not less than 10 years and 1 day of prision mayor and not more than 18 years of reclusion temporal; chan roblesvirtualawlibraryto indemnify the heirs of Policarpio Tibay in the sum of P6,000; chan roblesvirtualawlibraryand to pay the costs. SO ORDERED.

Six justices 5 believe that conceding the absence of a complex crime, still, by his plea of guilty the accused-Appellant has admitted all the acts described in the five separate counts of the information; chan roblesvirtualawlibraryand that if any of such counts constituted an independent crime committed within the jurisdiction of the lower court as seems to be the case under the facts alleged in Count No. 5 (the killing of Policarpio Tibay), then the avertment in the information that it was perpetrated in furtherance of the rebellion, being a mere conclusion, cannot be a bar toAppellant’s conviction and punishment for said offense, he having failed, at the arraignment, to object to the information on the ground of multiplicity of crimes charged. Hence, the acts charged in Counts 1 to 4 cannot be taken into consideration in this case, either because they were committed outside the territorial jurisdiction of the court below (Count 1), or because the allegations do not charge the Appellant’s participation (Count 3), or else the acts charged are essentially acts of rebellion, with out private motives (Counts 2 and 4). Five justices, 6 on the other hand, hold that by his plea of guilty, the accused avowed having committed the overt acts charged in all five counts; chan roblesvirtualawlibrarybut that he only admitted committing them in fact “as a necessary means”, “in connection and in furtherance of the rebellion”, as expressly alleged by the prosecution. This is not only because the information expressly alleged the necessary connection between the overt acts and the political ends pursued by the accused, but in addition, it failed to charge that the Appellant was impelled by private motives. Wherefore, such overt acts must be taken as essential ingredients of the single crime of rebellion, and the accused pleaded guilty to this crime alone. Hence, there being no complex crime, the Appellant can only be sentenced for the lone crime of rebellion. Even more, the minority contends that under the very theory of the majority, the circumstances surrounding the plea are such as to at least cast doubt on whether the accused clearly understood that he was pleading guilty to two different crimes or to only one; chan roblesvirtualawlibraryso that in fairness and justice, the case should be sent back for a rehearing by the Court of origin, to ascertain whether or not the accused fully realized the import of his plea (U.S. vs. Patala, 2 Phil.,

Paras, C.J., Bengzon, Reyes, A., Concepcion and Felix, JJ., concur.

Bautista

31

Phil.,

Angelo,

91; chan

Labrador,

Separate Opinions

MONTEMAYOR, J., dissenting:chanroblesvirtuallawlibrary

concurring

and

After stating the facts and the issues in this case, the learned majority opinion declares that the majority of seven Justices of the Court are of the opinion that the issue posed by theAppellants has been already decided in the recent resolution of this Court in the case of People vs. Hernandez, et al., (99 Phil., 529). Had the considerations ended there and the case was decided of the basis of said Hernandez resolution, which the majority of Justices apparently ratified, I would have contended myself with merely citing and making as part of my concurrence and dissent, my dissenting opinion in that same case of Hernandez, supra. However, the majority not only ratifies and emphasizes the considerations and doctrine laid down in the Hernandez case, but makes further considerations, additional and new, and even quote authorities, for which reason, I again find myself in a position where I am constrained not only to cite my dissenting opinion in the Hernandez case, but also make further observations not only to discuss the new point raised, but also in an endeavor to clarify and present a clear picture of our present law on rebellion and its origin.

For purposes of ready reference, I deem it convenient to reproduce articles 134 and 135 of the Revised Penal Code, reading as follows:chanroblesvirtuallawlibrary “ART. 134. Rebellion or insurrection. — How committed. — The crime of rebellion or insurrection is committed by being publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof of any body of land, naval or other armed forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. “ART. 135. Penalty for rebellion or insurrection. — Any person who promotes, maintains, or heads a rebellion or insurrection, or who, while holding any public office or employment takes part therein, engaging in war against the forces of the Government, destroying property or committing serious violence, exacting contributions or diverting public funds from the lawful purpose for which they have been appropriated, shall suffer the penalty of prision mayor and a fine not to exceed 20,000 pesos. “Any person merely participating or executing the commands of others in a rebellion shall suffer the penalty of prision mayor in its minimum period. “When the rebellion or insurrection shall be under the command of unknown leaders, any person who in fact directed the others, spoke for them, signed receipts and other documents issued in their name, or performed similar acts, on behalf of the rebels shall be deemed the leader of such rebellion.” I am also reproducing the Spanish text of the above Article 135 because as well stated in the majority opinion on the strength of the case People vs. Manaba, 58 Phil., 665, the Spanish text of the Rev. P. Code was the one approved by the Legislature and so is controlling. “ART. 135. Pena para la rebelion o insurreccion. — Sera castigado con prision mayor y multa que no exceda de 20,000 pesos el promovedor, sostenedor o jefe de la rebelion o insurreccion o el que hubiere tomado parte en ella siendo funcionario o empleado publico, sosteniendo combate contra la fuerza leal, causando estragos en las propiedades, ejerciendo violencia grave, exigiendo contribuciones, o distrayendo caudales publicos de su inversion legitima. “Los meros afiliados o ejecutores de la rebelion seran castigados con prision mayor en su grado minimo. “Cuando los jefes de una rebelion o insurreccion fueran desconocidos, se reputaran por tales los que de hecho hubieren dirigido a los demas, llevado la voz por ellos, firmado recibos y otros escritos expedidos a su nombre o ejercitado otros actos semejantes en representacion de los rebeldes.”

The majority says, and I quote:chanroblesvirtuallawlibrary “As in treason, where both intent and overt acts are necessary, the crime of rebellion is integrated by the coexistence of both the armed uprising for the purposes expressed in article 134 of the Revised Penal Code, and the overt acts of violence described in the first paragraph of article 135. That both purpose and overt acts are essential components of one crime, and that without either of them the crime of rebellion legally does not exist, is shown by the absence of any penalty attached to article 134.” I cannot agree wholly to the correctness of the above proposition. It is true that in treason as well as in rebellion both intent and overt acts are necessary, excluding of course conspiracy and proposal to commit rebellion where overt acts are not necessary (article 136), but what I consider the flaw in the thesis is the claim that in rebellion, the armed uprising is the intent and the overt acts are those act of violence described in the first paragraph of article 135, namely, engaging the Government forces in combat, causing damage to property, committing serious violence, etc. To me, the intent in rebellion is the purpose, the intention and the objective of the rebels to remove from the allegiance of the government or its laws the territory of the Philippines or any part thereof, of any body of land, naval or any armed forces, etc., and the overt act or acts are the rising publicly and taking arms against said Government. Article 134 contains and includes both elements, intent and overt acts to constitute a complete crime. Said article 134, without making any reference to any other article, described the manner rebellion is committed, not partially but fully and completely, without any qualification whatsoever, and said description is complete in order to render persons included therein as having consummated the crime of rebellion. Article 134 in part reads. “ART. 134. Rebellion or insurrection. — How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government” etc. It is necessary to consider the origin and history of the provisions of articles 134 and 135 of the Revised Penal Code as I have previously reproduced. This, in order to have a clearer understanding of the meaning of both articles and the spirit and intention behind them. Our present Revised Penal Code is a revision of our Penal Code promulgated in the Philippines on July 14, 1887 (later referred to as the Penal Code of 1887), based upon and taken almost bodily from the Spanish Penal Code of 1870 (later referred to as the Penal Code of 1870). Our Penal Code of 1887 adopted in great measure the provisions of the Penal Code of 1870. However, the provisions of our Penal Code of 1887 on rebellion, were superseded and replaced by the provisions of Act No. 292 of the Philippine Commission, which governed rebellion up to 1932 when the Revised Penal Code went into effect. In dealing with the

crime of rebellion, the Committee on Revision abandoned the provisions of Act No. 292 and went back to and adopted those of the Penal Code of 1870, although it included the more benign and lighter penalties imposed in Act No. 292. The provisions of the Penal Code of 1870 on rebellion are rather complicated for the reason that in defining and penalizing acts of rebellion, they make reference to the provisions regarding crimes against the form of government. For this reason, to have an over all picture of the law on rebellion, we have to make reference to and cite, even reproduce, portions of the codal provision on crimes against the form of government. For the sake of brevity and so as not to unduly lengthen this opinion, I shall confine myself to the reproduction of the pertinent provisions of the Spanish Penal Code of 1870, for being the source of our Penal Code of 1887, besides the likelihood if not a fact that since as already stated, the provisions of our Penal Code of 1887 on rebellion were not in force at the time of the revision, the Committee revising said Penal Code of 1887, must have considered mainly the provisions of the Penal Code of 1870. Art. 184 of the Sp. P. Code of 1870 reads, thus:chanroblesvirtuallawlibrary

“ART. 243. Son resos de rebelion los que se alzaren publicamente y en abierta hostilidad contra el Gobierno para cualquiera de los objetos siguientes:chanroblesvirtuallawlibrary “1.° Destronar al Rey, deponer el Regente o Regencia del Reino, o privarles de su libertad personal u, obligarles a ejecutar un acto contrario a su voluntad. “2.° Impedir la celebracion de las elecciones para Diputados a Cortes o Senadores en todo el Reino, o la reunion legitima de las mismas. “3.° Disolver las Cortes o impedir la deliberacion de alguno de los Cuerpos Colegisladores o arrancarles alguna resolucion. “4.° Ejecutar cualquiera delos delitos previstos en el art. 165. “5.° Sustraer el Reino o parte de el o algun cuerpo de tropa de tierra o de mar, o cualquiera otra clase de fuersa armada, de la obediencia al supremo Gobierno.

Delitos contra la forma de Gobierno

“6.° Usar y ejercer por si o despojar a los Ministros de la Corona de sus facultades constitucionales, o impedirles o coartarles su libre ejercicio.

“ART. 184. Los que se alzaren publicamente en armas y en abierta hostilidad para perperar cualquiera de los delitos previstos en el articulo 181, seran castigados con las penas siguientes:chanroblesvirtuallawlibrary

ARTS. 244, 245 and 246 follows:chanroblesvirtuallawlibrary

“1.° Los que hubieren promovido el alzamiento o lo sostuvieren o lo dirigieren o aparecieren como sus principales autores, con la pena de reclusion temporal en su grado maximo a muerte. “2.° Los que ejercieren un mando subalterno, con la de reclusion temporal a muerte, si fueren personas constituidas en Autoridad civil o eclesiastica, o si hubiere habido combate entre la fuerza de su mando y la fuerza publica fiel al Gobierno, o aqu;lla hubiere causado estragos en las propiedades de los particulares, de los pueblos o del Estado, cortado las lineas telegraficas o las ferreas, ejercido violencias graves contra las personas, exigido contribuciones o distraido los candales publicos de su legitima inversion. “Fuera de estos casos, se impondra al culpable la pena de reclusion temporal. “3.° Los meros ejecutores del alzamiento con la pena de prision mayor en su grado medio a reclusion temporal en su grado medio a reclusion temporal en su grado minimo, en los casos previstos en el parrafo primero del numero anterior, y con la de prision mayor en toda su extension, en los comprendidos en el parrafo segundo del propio numero.” Art. 243 of the same code reads as follows:chanroblesvirtuallawlibrary Delitos contra el Orden Publico

of

the

same

code

read

as

“ART. 244. — Los que induciendo y determinando a los rebeldes, hubieron promovido o sostuvieren la rebellion, y los candillos principales de esta, seran castigados con la pena de reclusion temporal en su grado maximo a muerte. “ART. 245. — Los ejerciaren un mando subalterno en la rebelion incurriran en la pena de reclusion temporal a muerte, si se encontraren en alguno de los casos previstos en el parrafo primero del numero 2.° del articulo 184; chan roblesvirtualawlibraryy con la de reclusion temporal si no se encontraren incluidos en ninguno de ellos. “ART. 246. — Los meros ejecutores de la rebelion seran castigados con la pena de prision mayor en su grado medio a reclusion temporal en su grado minimo, en los casos previstos en el parrafo primero del numero 2.° del articulo 184; chan roblesvirtualawlibraryy con la de prision mayor en toda su extension no estando en el mismo comprendidos. It will be observed that in drafting Art. 134 of our Revised Penal Code, the Committee on Revision (later referred to as Code Committee) adopted, with the exclusion of numbers 1, 2, 3, 4 and 6 of Art. 243 which refer to the King and the legislative bodies of the Kingdom of Spain, the provisions of said art. 243 of the Penal Code of 1870, particularly, the first part thereof and also No. 5, even their phraseology —

“son reos de rebelion los que se alzaren publicamente y en abierta hostilidad contra el Gobierno” cralaw and “sustraer el Reino o parte de el o algun cuerpo de tropa de tierra o de mar, o cualquiera otra clase de fuerza armada, de la obediencia al supremo Gobierno”, (the crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof of any body of land, naval or other armed forces), (our article 134). Now, as regards the penalty for rebellion, it will be seen that under article 244 (Penal Code of 1870), persons who by inciting and encouraging the rebels shall have brought about or shall sustain a rebellion as well as the principal leaders of such rebellion as are penalized with reclusion temporal in its maximum degree of death. Under article 245, same code, those holding a subordinate command in the rebellion are penalized with reclusion temporal to death, if they are included in any of the cases provided for in paragraph 1 of No. 2 of article 184, which for purposes of ready reference we again reproduce, thus:chanroblesvirtuallawlibrary “ cralaw si fueren personas constituidas en Autoridad civil o eclesiastica, o si hubiere habido combate entre la fuerza de su mando y la fuerza publica fiel al Gobierno, o aguella hubiere causado estragos en las propiedades de los particulares, de los pueblos o del Estado, cortado las lineas telegraficas o las vias ferreas, ejercido violencias graves contra las personas, exigido contribuciones o distraidos los caudales publicos de su legitima inversion.”; or if not so included, the penalty is reclusion temporal. Under article 246, those persons merely participating in the rebellion are penalized with prision mayor in its medium degree to reclusion temporal in its minimum degree, in the cases provided for in paragraph 1 of No. 2 of article 184 as above reproduced, but those not so included, will suffer the penalty only of prision mayor. As I have stated in my dissenting opinion in the Hernandez case, supra, one of the purposes of the revision of our old Penal Code of 1887 was simplification and elimination of provisions considered unnecessary, in proof of which, while the old Penal Code contained 611 articles, the Revised Penal Code has but 367 articles. There is every reason to believe that the code Committee in its endeavor at simplification did not deem it necessary to provide a special penalty for those who promote, maintain, or head a rebellion as does article 244, and it made a merger or combination of articles 244 and 245, so as to impose the same penalty on (1) the promoters and leaders of the rebellion and (2) on those who are either holding any public office or employment (instituida en autoridad civil o eclesiastica) or if not so holding any public office, that their forces have engaged the forces of the Government in combat, or have caused damage to Government or private

property, or committed serious violence, etc. (“sosteniendo combate contra la fuerza leal, causendo estragos en las propeidades, ejerciendo violencia grave, exigiendo, contribuciones, o distrayendo caudales publicos de su enversion legitima”). (Spanish text of article 135 of our revised Penal Code). I cannot believe that the Code Committee in making the merger abandoned the idea of punishing the promotion, maintenance, and leadership of a rebellion in itself, and that to penalize the same, it must be connected and coupled with the commission of any or all of the acts above mentioned, which under the Penal Code of 1870, refers only to those holding a subordinate command in the rebellion. I am convinced that the whole aim and intention of the Code Committee was merely to equalize the penalty for both sets of rebels — those leaders, promoters, and maintainers of the rebellion on the one hand, and those holding a subordinate command under the qualification stated in paragraph 1 of article 135, but that the former, because of their more serious and heavier criminal responsibility their promotions, maintenance, and leadership of the rebellion were sufficiently deserving of the penalty of prision mayor and a fine not, to exceed P20,000; chan roblesvirtualawlibrarybut for those rebels with lesser responsibility, to deserve the same penalty, they must either be holding any public office or employment, or if not, that their forces have engaged Government troops in combat, or have caused damage to property, etc. Stated differently, the clause “sosteniendo combate contra la fuerza leal, causando estragos en las propeidades, ejerciendo violencia grave,” etc., refers to and qualifies not the leaders, promoters, and maintainers of the rebellion, but only those rebels of lesser responsibility. In other words for the leaders, promoters and maintainers of the rebellion, the rebellion is consummated and subject to punishment under article 134. It may be that the Code Committee that drafted article 135 in its endeavors to achieve a phraseology as simple and concise as possible, did not convey its purpose and intent any too plainly and clearly, but I venture to assert that that was what it meant. In case of doubt as to the real meaning of article 135, recourse should be had to its source, namely, articles 244 and 245 in relation with No. 2 paragraph 1 of article 184 of the Spanish Penal Code of 1870, for which reason I deemed it necessary to reproduce as I did said articles. For the foregoing reasons, I cannot agree with the majority that the commission of the acts mentioned in Article 134 alone, even by the leaders and promoters of the rebellion, carry no penal sanction. Besides the considerations or conclusions already adduced against said holding and theory of the majority, there are other reasons. For instance, the second paragraph of article 135 provides that:chanroblesvirtuallawlibrary “Any person merely participating or executing the commands of others in a rebellion shall suffer the penalty of prision mayor in its minimum period.”

Under this provision, one merely participating in a rebellion, that is rising publicly and taking arms against the government under article 134, is penalized with prision mayor in its minimum period. But under the theory of the majority, the leaders of the rebellion who perform the same acts defined in the same article 134 may not be punished, unless they or their forces engage Government troops or cause damage to property, commit serious violence, etc. That would seem to be unjust and illogical. Again, articles 136 and 138 of the Revised Penal Code penalize conspiracy and proposal to commit rebellion and inciting to rebellion. I reproduce said two articles:chanroblesvirtuallawlibrary “ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy and proposal to commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum period and a fine which shall not exceed P5,000, and by prision correccional in its medium period and a fine not exceeding P2,000.” “ART. 138. — Inciting to rebellion or insurrection. — The penalty of prision mayor in its minimum period shall be imposed upon any person who, without taking arms or being in open hostility against the Government, shall incite others to the execution of any of the acts specified in article 134 of this Code, by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end.” Under article 136, if two or more persons merely conspire and come to an agreement to commit rebellion or insurrection, which is defined in article 134, without actually committing it or performing the acts mentioned in said article 134, they are already guilty and are punished with prision correcional in its maximum period and a fine not exceeding P5,000; chan roblesvirtualawlibraryand if the same two or more persons just propose to some other person or persons the commission of rebellion under article 134, they are punished with prision correccional in its medium period and a fine of not exceeding P2,000. In fine, persons merely agreeing and deciding among themselves to rise publicly and take arms against the Government for the purpose mentioned in article 134, without actually rising publicly and taking arms against the Government, or if they merely propose the commission of said acts to other persons without actually performing those overt acts under article 134, they are already subject to punishment. But under the theory of the majority, if those same persons, not content with merely conspiring and agreeing to commit the acts of rebellion or proposing its commission to others, actually go out and actually carry out their conspiracy and agreement, and rise publicly and take arms against the Government, under article 134 there is no penalty. That seems to me rather unreasonable and hard to understand.

Then, under article 138 of the Revised Penal Code, persons who, without taking arms or being in open hostility against the Government under article 134, merely incite others to the execution of any of the acts specified in said article, by means of speeches, proclamations, writings, etc., they are punished with prision mayor in its minimum period. But according to the interpretation by the majority of articles 134 and 135, if those same persons, not content with merely making speeches, issuing proclamations, etc., intended to incite others to commit the acts specified in article 134, actually commit those acts themselves, they incur no penalty. I confess I fail to follow the reasoning of the majority on the point. “Rebellion or insurrection. — How committed. — The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government”. (Article 134) It is true that article 134 of our Revised Penal Code itself does not impose any penal sanction; chan roblesvirtualawlibrarythe reason is that it is a mere definition, just as article 243 of the Spanish Penal Code of 1870 from which it was taken, merely defines and does not penalize the acts therein enumerated. The fact that the article defining a crime or describing how it is committed does not itself impose the penalty does not necessarily mean that the act or acts so defined do not constitute a crime; chan roblesvirtualawlibraryotherwise, all the definition and all the detailed description of the commission of said crime would become empty, meaningless and useless. The penalty for rebellion is found in the following article of 135, just as it is found in articles 244, 245 and 246 of the Penal Code of 1870. I believe that when a group of dissidents or Hukbalahaps armed and determined to overthrow the Government raid, say, an isolated town, scare away the two or three policemen on guard at the presidencia, take possession of the building even for a few hours, raise the rebel flag, call and herd the residents before the presidencia, and make speeches proclaiming the regime of the dessidents and advising the gathering to transfer their allegiance and loyalty from the constituted Government to the rebels and stop paying taxes to said government and instead contribute the funds to the Huks, without firing a single shot or committing any of the acts enumerated in article 135, the crime of rebellion is complete and consummated and is subject to penalty. In my modest research for authorities on the subject of rebellion, I came across the case of People of the Philippines vs. Benito Cube of the Court of Appeals, G. R. No. 1069-R, decided by that court on November 24, 1948. There it was held that:chanroblesvirtuallawlibrary “ cralaw The mere fact that Appellant knowingly identified himself with an organization that was openly fighting to overthrow the Government was enough to make him guilty of the crime of rebellion. Under our laws it is not

necessary that one has engaged the Government in a clash of arms to commit the crime of rebellion. It is not even necessary that there be a clash of arms between the rebels and the Government. (U. S. vs. Sadian, 3 Phil., 323.) “ Incidentally, it may be stated that said decision penned by Mr. Justice Gutierrez David was concurred in and signed by Mr. Justice J. B. L. Reyes, the writer of the present majority decision. The same Court of Appeals, in the case of People vs. Geronimo Perez, G. R. No. 9196-R, involving rebellion cited with favor its previous decision in the case of People vs. Cube, supra, and apparently affirmed and ratified the doctrine laid therein. Now, as to the nature and application of penalty of rebellion under our Revised Penal Code, I have already endeavored to show that our Art. 135 is based upon and taken from articles 244, 245 and 246 of this Penal Code of 1870, though drastically reducing and mitigating the severity of the penalties found in the Spanish Penal Code, and that the Code Committee in its effort at simplification, made a merger of Arts. 244, 245 and 246. The Code Committee, I feel certain, adopted in principle the scientific and equitable classification of the different persons taking part in the rebellion, scaling punishments according to their position in the rebellion and extent and seriousness of their responsibility. The Code Committee may not have made itself entirely clear, and in case of doubt we should interpret Art. 135 in relation to and considering the philosophy of the Spanish Penal Code provisions on the subject of penalties on rebellion in order to avoid the unreasonable, unequitable, even absurd results I have already pointed out. To achieve this, we may have recourse to the rules of statutory construction. If a literal interpretation of any part of a statute would operate unjustly or lead to absorb results, or be contrary to the evident meaning of the Act taken as a whole, it should be rejected (In Re:chanroblesvirtuallawlibrary Allen, 2 Phil. 630, 643); chan roblesvirtualawlibrarycourts permit the elimination of a word and its substitution for others when it is necessary to carry out the legislative intent, where the word is found in the statute due to the inadvertence of the legislature or reviser, or where it is necessary to give the act meaning, effect, or intelligibility, or where it is apparent from the context of the act that the word is surplusage, or where the maintenance of the word, would lead to an absurdity or irrationality, or where the use of the word was a mere inaccuracy, or clearly apparent mishap, or where it is necessary to avoid inconsistencies and to make the provisions of the act harmonize (Sutherland, Statutory Construction, Third Edition, Vol. II, pp. 458 464); chan roblesvirtualawlibraryin the construction of laws, whether constitutional or statutory, the court is not bound to a literal interpretation, where it would lead to an absurdity or a plain violation of the spirit and purpose of the enactment

(McCarty v. Goodsman, 167 N. W. 503 cited in L. R. A. Digest, Vol. 7, p. 8892) I agree with the majority that any or all the acts described in article 135 when committed as a means to or in furtherance of the rebellion become absorbed in said rebellion. The question now is to determine the meaning and scope of said acts. The first act is “sosteniendo combate contra la fuerza leal”, which was erroneously translated into English in article 135 to “engaging in war against the forces of the Government”. In the case of Hernandez, supra, we all accepted and followed that English translation, but later found that it was the Spanish text of the Revised Penal Code that was approved by the Legislature. Naturally, we are bound by the Spanish text. Incidentally, if I be permitted a little digression, the majority resolution in that case of Hernandez laid much emphasis on the phrase “engaging in war”, and would have included and absorbed in the rebellion the killings of and other outrages to civilians. I quote:chanroblesvirtuallawlibrary “One of the means by which rebellion may be committed, in the words of said article 135, is by “engaging in war against the forces of the government” and ‘committing serious violence’ in the prosecution of said ‘war’. These expressions imply everything that war connotes, namely:chanroblesvirtuallawlibrary resort to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and unhappiness that war carries in its wake — except that, very often, it is worse than war in the international sense, for it involves internal struggle, a fight between brothers, with a bitterness and passion or ruthlessness seldom found in a contest between strangers. Being within the purview of “engaging in war” and ‘committing serious violence’, said resort to arms, with the resulting impairment or destruction of life and property, constitutes not two or more offenses, but only one crime — that of rebellion plain and simple.” Now that we find that what article 135 provides is not engaging in war, but merely engaging in combat, and knowing the vast difference between war and mere combat, there is the possibility that some of the considerations and conclusions made in that majority resolution in the Hernandez case may be affected or enervated. In other words, our law in rebellion contemplates on only armed clashes, skirmishes, ambuscade, and raids, not the whole scale conflict of civil war like that between the Union and Confederate forces in the American Civil War, where the rebels were given the status of belligerency under the laws of war, and consequently, were accorded much leeway and exemption in the destruction of life and property and the violation of personal liberty and security committed during the war. I agree with the majority opinion in the present case that if the dissidents attack or are attacked by the Government forces, and deaths are caused by

the rebels, said combat, provided that the killings are of Government troops or of civilians attached to said troops, like informers, guides, etc. But when innocent civilians far from the scene of combat are murdered either because they failed or refuse to sympathize or cooperate with dissidents, or because they are wealthy landowners, or because they failed to pay the amount of the ransom for those kidnapped by the dissidents, said killings cannot and may not be included and absorbed in the rebellion. The majority says that the term “violencia grave” (grave violence) enumerated in article 135 is broad and may include the killing of civilians. Again, I disagree. There is a vast difference between violence, even serious violence, and murder or killing. In committing the crime of robbery, the robber may use violence, even serious violence, on his victim; chan roblesvirtualawlibrarybut if the violence results in death, the robber is held guilty not only of robbery but also homicide, or even murder, unless the two crimes can be considered as a complex crime of robbery with homicide. In other words, the violence, even serious violence, supposed to be included in robbery does not extend to, and include killing. The same thing may be said of the crime of coercion where force and violence is contemplated. If the violence used does not result in death, the offender answers only for the crime of coercion, but if the victim dies as a result of the violence to which he was subjected, then said violence contemplated by the law does not extend to or cover the death, and the offender answer for both homicide and coercion. The idea I wish to convey is that the serious violence mentioned in article 135 can by no means be interpreted to include killings. In the revised or consolidated (refundido) Penal Code of Spain of 1944, I have found the phrase “violencia grave” used in article 144, in connection with article 142, both under the title Delitos Contra el Jefe del Estado. I quote:chanroblesvirtuallawlibrary ART. 142. Al quematare al Jefe del Estado se impondra la pena de reclusion mayor a muerte. “Con igual pena se castigara el delito frustrado y la tentativa del mismo delito.” “ART. 144. Se castigara con muerte:chanroblesvirtuallawlibrary

la

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“1.° Al que privare al Jefe del Estado de su libertad personal. “2.° Al que con violencia o intimidacion graves le obligare a ejecutar un acto contra su voluntad. “3.° Al que le causare lesiones graves no estando comprendidas en el parrafo segundo del art. 142.”

From the above articles we can gather that the Spanish legislators made the necessary and important distinction between the mere use of serious violence (violencia grave) on the Chief of State and causing his death, by treating of the two act separately in articles 142 and 144. In fine, serious violence is one thing and killing or murder is another, entirely different from each other, one certainly more serious and a graver offense than the other. If serious violence results in death, then said violence changes in aspect and becomes homicide or murder. I therefore conclude that the serious violence mentioned in article 135, which I agree with the majority that it refers to civilians and not to members of the armed forces of the Government, cannot include killings of said civilians. Otherwise, where we to hold that the serious violence (violencia grave) extends to and includes killings and murders, then we would be converting, though unwittingly, every rebellion into an open season for hunting as it were, innocent civilians who have the misfortune of living within raiding distance from the dissident hideouts. The majority explains and gives reasons for the great difference between murder on the one hand, penalized with reclusion temporal to death, and rebellion on the other, punished with mere prision mayor, due to the political purpose that impels every rebellious act and quotes Groizard, Vol. III, p. 239, who discusses the great difference between the crime of, say, murder or robbery, and the offense of rebellion; chan roblesvirtualawlibrarythat no one would care to befriend one convicted as an assassin or robber, but on the other hand would gladly, even fondly, shake the hand of one convicted of rebellion, and that when the rebellion succeeds, the rebel not only secures impunity to his rebellious act, but also attains power, even the government itself and the glory. I agree. It is no less true, however, that Groizard must be referring to a rebel with clean hands and a clean conscience, for it is gravely to be doubted whether one would shake the hand of a rebel dripping and stained with the blood of innocent civilians, a hand responsible for the devastation and desolation cause to those very persons and communities which the rebellion pretended to help and liberate from oppression. That is why Groizard in his next paragraph, in advocating for the reduction of the very severe penalty attached to rebellion under the Spanish Penal Code distinguishes between simple rebellion and one in which the common crimes like murder, robbery, etc., and committed. I quote:chanroblesvirtuallawlibrary “Con esto queremos dar a entender que las penas fulminadas en el texto que comentamos nos parcen ante la razon y la ciencia injustificadas por su dureza. La pena de muerte, tan combatida hoy en todos terrenos, solo puede defenderse, como tipo maximo de represion, para aquellos delitos que revisten en todas sus circumstancias el grado mayor juridico concebible de criminalidad. Ahora mite maximo de la depravacion humana?” (Supplied)

bien; chan roblesvirtualawlibrarypueden ser los meros delitos politicos, aun los delitos de rebelion por graves que sean, no estando unidos con otros delitos comunes, como robos, incendios, asesinatos, etc., etc.; chan roblesvirtualawlibrarypueden ser, decimos, calificados, en abstractos principios de justicia, como el limite maximo de la depravacion humana?” (Emphasis supplied.) Then the majority makes a reference to our history of long, uninterrupted rebellion against Spain. A rebellion whose purpose is to overthrow a corrupt and tyrannical government, redeem the people from oppression, exploitation and injustice, and free them from a foreign yoke is a movement deserving of sympathy and admiration; chan roblesvirtualawlibrarybut a rebellion aimed at overthrowing not a foreign and monarchical government but its very own, to substitute it not with a democratic and republic form of government for it is already a republic, but to institute in its place a new regime under an entirely new and foreign ideology, godless and absolute, to be subject to the orders and control of a foreign power, such a rebellion assumes an entirely different aspect, and I am afraid that for it there cannot be the sympathy, the admiration and glory that Groizard and we have in mind. The majority further says that as pointed out in the Hernandez resolution, to admit the complexing of the crime of rebellion with other crimes, would result in making the punishment for rebellion heavier than that of treason. That claim is not entirely correct. The penalty for simple rebellion is still prision mayor. Now, if the rebels besides committing the crime of rebellion, commit other crimes more serious from the standpoint of the penalty, like murder or kidnapping, the penalty for the complex crime necessarily must be more serious than that of prision mayor, but it does not mean that the penalty for rebellion has been raised to say reclusion perpetua to death because the penalty for the complex crime of rebellion with murder is not the penalty for rebellion but the penalty for the more serious crime of murder, in its maximum degree. Let us take the crime of estafa involving an amount not exceeding P200.00, to which the law attaches the relatively light penalty of arresto mayor in its medium and maximum periods. If one is convicted of simple estafa, he can be sentenced to only a few months. But if in committing said estafa he also commits the crime of falsification of a public document, then the resulting crime is a complex one and he may be sentenced to from four to six years imprisonment, a penalty which does not belong to estafa but to the more serious offense of falsification, and in its maximum degree. I want to make it clear that we who have dissented in the Hernandez case have neither the desire nor intention to increase the penalty of rebellion. It may stand as it is, prision mayor; chan roblesvirtualawlibrarybut if other crimes like murder, robbery and kidnapping are committed as a means to commit rebellion, that is entirely a different matter.

In addition to the considerations I made in my dissenting opinion in the Hernandez case about the complex crime of rebellion with murder, kidnapping, etc., I wish to emphasize the fact that according to the several informations filed in different Courts of First Instance, particularly the different counts contained therein and the arguments adduced by counsel for the government, the murders, kidnappings, arsons, etc., committed by the rebels were so committed not just in outbursts of irresponsibility or for fun or for private motives but that they had an intimate relation with the rebellion itself; chan roblesvirtualawlibrarythat kidnappings and robberies were committed to raise funds to finance the rebellion, not only to secure food and clothing for the rebels, but also firearms and ammunitions; chan roblesvirtualawlibrarythat murders were committed in order to institute a reign of terror and panic so that the residents of the outlying barrios finding themselves beyond the protection of the army, would have no choice but to join the rebel movement or cooperate and sympathize with them were it only for purposes of survival; chan roblesvirtualawlibrarythat houses of innocent civilians are razed to the ground either as an act of reprisal or punishment for disobedience to orders of the rebels and to serve as an example to others; chan roblesvirtualawlibrarythat wealthy landowners and members of their families were liquidated in line with the idea and doctrine that the landed properties will eventually be distributed among the rebels or become public property under the new regime. Under this aspect of the case, there emerges the picture of the intimate and direct relation between these acts of atrocity and rebellion. From the standpoint of the rebels these acts are means necessary in their effort to overthrow the government and achieve the goal of the rebellion. From this standpoint, I reiterate the contention that the complex crime of rebellion with murder, kidnapping, robbery, etc. can and does exist. I also agree with the majority that the taking of public funds and equipment from the Provincial Treasury of Laguna under count No. 2 of the information against Appellant, may be absorbed in the rebellion for the reason that it comes within the phrase “distrayendo caudales publicos de su inversion legitima” (diverting of public funds from the legal purpose for which they have been appropriated). For the foregoing reasons and considerations, I hold that DefendantAppellant herein should beheld to answer for the killings under count No. 1 of the members of the party of Mrs. Quezon, including herself, a beloved and revered citizen, who had no connection whatsoever with the Government, much less of its armed forces; chan roblesvirtualawlibraryfor the treacherous killing and cutting of the neck of Nemesei Palo under count No. 3, for the reason that he was not a member of the government forces, but a mere policeman a local peace officer of the town of Linmanan, Camarines Sur; chan roblesvirtualawlibraryand for the killing of Policarpio Tipay, barrio lieutenant, under count No. 5, because he was a mere civilian official of the

lowest category, expected only to help the residents of his barrio voice their needs and interests before the town officials, and receiving no compensation for this civic service. The above mentioned killing under counts 1, 3, and 5 should be complexed with rebellion and the corresponding penalty imposed. In so far as the majority fails to do this, I am constrained to dissent as I do. And failing to secure a conviction for rebellion complexed with the killing of Policarpio Tipay under count 5, I concur with the majoritY in finding Defendant under said count 5 guilty of murder as a separate crime. Endencia, J., concurs.

PADILLA, J., concurring and dissenting:chanroblesvirtuallawlibrary I concur in the opinion of Mr. Justice Montemayor except as to the inclusion of count No. 1 of the information over which the trial court (the Court of First Instance of Camarines Sur) had no jurisdiction because it was committed in Nueva Ecija, outside the territorial jurisdiction of the trial court, unless it is intended as an expression of an opinion or a statement of a postulate that the crime of rebellion may be complexed with murder. I wish to add the codifiers of the penal laws of Spain, as embodied in the Penal Codes of 1870 and 1887, could not or did not foresee the development and progress of the Communist movement, as mapped out in the Communist Manifesto of December 1847, which aimed at world revolution and domination and turned more violent since 1917 after the overthrow of the Kerenski Government in Russia that succeeded the Czarist regime. The first edition of Das Kapital by Karl Marx was published in 1867. It is the first volume containing Book 1 which concerns with The Process of Capitalist Production; chan roblesvirtualawlibraryand although he had the essential facts or materials of Volume II which was to be Book II aimed at expounding on the Process of Capitalist Circulation, and Book III intended to analyze The Process of Capitalist Production as a Whole, and of Volume III to contain Book IV which was to relate a History of Theories of Surplus Value, his death on 14 March 1883 prevented him from completing the work. Frederick Engels, his collaborator, took over and published in May 1885 Volume II, The Process of Capitalist Circulation, and in October 1894 Volume III, the Capitalist Process of Production as a Whole. On 6 August 1895 Engels died and Book IV originally planned as Volume III was not completed. These volumes and books were published by Engels after 1870, the year when the Spanish Penal Code was enacted or promulgated. The turn from exposition of the defects, faults and evils of capitalism and persuasion to forsake it into violent and ruthless means to achieve its discard were not anticipated. The provisions of article 90 of the Penal Code of 1870 and of article 89 of the Penal Code of 1887 were due to the vision and foresight of the Spanish codifiers of their penal laws. Where an indispensable crime is committed to

perpetrate another the result is one crime. Where a crime is committed as a means necessary to consummate another the result is a complex one and the penalty provided for the most serious has to be imposed. Rebellion as perpetrated and pursued relentlessly by the Communist is a continuing crime, the ultimate aim of which is to overthrow the existing governments and to set up their own. To attain that end it is not enough for them to achieve partial or local success. They always look forward to and avail themselves of every means and seize every opportunity to realize the ultimate objective. For that reason a crime committed such as murder, robbery, kidnapping, arson and the like, though not indispensable for or to the commission of that of rebellion is nonetheless a means necessary to the attainment of their ultimate finality or end. To create chaos and confusion, to weaken the morale of the populace, to sow terror and infuse into the mind of the people panic and fear so that they would submit meekly to the Communist importunities, demands, imposition, rule, doctrine, political philosophy and policy, are but a means to an end. Viewed in that light I fail to see any juridical objection or obstacle to the application of the provisions of article 48 of the Revised Penal Code, as amended by Act No. 4000. As stated in the majority opinion, and without foresaking my view on the point of complexity of rebellion with murder, I agree to the penalties imposed upon the Defendant for two crimes upon his plea of guilty, for the reason that without my concurrence there would be no sufficient number of votes to impose the penalty for the more serious crime.

Endnotes:chanroblesvirtuallawlibrary 1. Chief Justice Paras, and Justices Bengson, Alex. Reyes, Bautista Angelo, Concepcion, Reyes (J. B. L.) and Felix. 2. Art. 134. Rebellion or insurrection. — How committed. The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part thereof of any body of land, naval or other armed forces, or of depriving the chief Executive or the Legislative, wholly or partially, of any of their powers or prerogatives.” 3. i. e. engaging in combat; chan roblesvirtualawlibrarynot “engaging in war” as erroneously stated in English translation. Hence the prosecution’s arguments based on alleged violations of the laws of war by the accused seem out of place. 4. Ante. p. 4. The four dissenting justices in the Hernandez resolution see no reason for altering their stand on the question of complexity as expressed in that case.

5. Justices Padilla, Montemayor, Bautista Angelo, Labrador, Endencia, and Felix. 6. Chief Justice Paras and Justices Bengzon, Alex Reyes, Concepcion, and Reyes, J. B. L.