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G.R. No. L-409

January 30, 1947

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

In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the
Court, acting on the petition for habeas corpusfiled by Anastacio
Laurel and based on a theory that a Filipino citizen who adhered to
the enemy giving the latter aid and comfort during the Japanese
occupation cannot be prosecuted for the crime of treason defined
and penalized by article 114 of the Revised Penal Code, for the
reason (1) that the sovereignty of the legitimate government in the
Philippines and, consequently, the correlative allegiance of Filipino
citizens thereto was then suspended; and (2) that there was a
change of sovereignty over these Islands upon the proclamation of
the Philippine Republic:
(1) Considering that a citizen or subject owes, not a qualified and
temporary, but an absolute and permanent allegiance, which
consists in the obligation of fidelity and obedience to his
government or sovereign; and that this absolute and permanent
allegiance should not be confused with the qualified and temporary
allegiance which a foreigner owes to the government or sovereign
of the territory wherein he resides, so long as he remains there, in
return for the protection he receives, and which consists in the
obedience to the laws of the government or sovereign.
(Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State
Webster Report to the President of the United States in the case of
Thraser, 6 Web. Works, 526);
Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy of their legitimate
government or sovereign is not abrogated or severed by the
enemy occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we
have held in the cases of Co Kim Cham vs. Valdez Tan Keh and
Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil.,
285), and if it is not transferred to the occupant it must necessarily
remain vested in the legitimate government; that the sovereignty
vested in the titular government (which is the supreme power
which governs a body politic or society which constitute the state)
must be distinguished from the exercise of the rights inherent
thereto, and may be destroyed, or severed and transferred to

another, but it cannot be suspended because the existence of

sovereignty cannot be suspended without putting it out of
existence or divesting the possessor thereof at least during the socalled period of suspension; that what may be suspended is the
exercise of the rights of sovereignty with the control and
government of the territory occupied by the enemy passes
temporarily to the occupant; that the subsistence of the
sovereignty of the legitimate government in a territory occupied by
the military forces of the enemy during the war, "although the
former is in fact prevented from exercising the supremacy over
them" is one of the "rules of international law of our times"; (II
Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by
necessary implication, in articles 23, 44, 45, and 52 of Hague
Regulation; and that, as a corollary of the conclusion that the
sovereignty itself is not suspended and subsists during the enemy
occupation, the allegiance of the inhabitants to their legitimate
government or sovereign subsists, and therefore there is no such
thing as suspended allegiance, the basic theory on which the whole
fabric of the petitioner's contention rests;
Considering that the conclusion that the sovereignty of the United
State was suspended in Castine, set forth in the decision in the
case of United States vs. Rice, 4 Wheaton, 246, 253, decided in
1819, and quoted in our decision in the cases of Co Kim Cham vs.
Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons,
supra, in connection with the question, not of sovereignty, but of
the existence of a government de factotherein and its power to
promulgate rules and laws in the occupied territory, must have
been based, either on the theory adopted subsequently in the
Hague Convention of 1907, that the military occupation of an
enemy territory does not transfer the sovereignty to the occupant;
that, in the first case, the word "sovereignty" used therein should
be construed to mean the exercise of the rights of sovereignty,
because as this remains vested in the legitimate government and
is not transferred to the occupier, it cannot be suspended without
putting it out of existence or divesting said government thereof;
and that in the second case, that is, if the said conclusion or
doctrine refers to the suspension of the sovereignty itself, it has
become obsolete after the adoption of the Hague Regulations in
1907, and therefore it can not be applied to the present case;
Considering that even adopting the words "temporarily allegiance,"
repudiated by Oppenheim and other publicists, as descriptive of
the relations borne by the inhabitants of the territory occupied by
the enemy toward the military government established over them,

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such allegiance may, at most, be considered similar to the
temporary allegiance which a foreigner owes to the government or
sovereign of the territory wherein he resides in return for the
protection he receives as above described, and does not do away
with the absolute and permanent allegiance which the citizen
residing in a foreign country owes to his own government or
sovereign; that just as a citizen or subject of a government or
sovereign may be prosecuted for and convicted of treason
committed in a foreign country, in the same way an inhabitant of a
territory occupied by the military forces of the enemy may commit
treason against his own legitimate government or sovereign if he
adheres to the enemies of the latter by giving them aid and
comfort; and that if the allegiance of a citizen or subject to his
government or sovereign is nothing more than obedience to its
laws in return for the protection he receives, it would necessarily
follow that a citizen who resides in a foreign country or state would,
on one hand, ipso factoacquire the citizenship thereof since he has
enforce public order and regulate the social and commercial life, in
return for the protection he receives, and would, on the other hand,
lose his original citizenship, because he would not be bound to
obey most of the laws of his own government or sovereign, and
would not receive, while in a foreign country, the protection he is
entitled to in his own;
Considering that, as a corollary of the suspension of the exercise of
the rights of sovereignty by the legitimate government in the
territory occupied by the enemy military forces, because the
authority of the legitimate power to govern has passed into the
hands of the occupant (Article 43, Hague Regulations), the political
laws which prescribe the reciprocal rights, duties and obligation of
government and citizens, are suspended or in abeyance during
military occupation (Co Kim cham vs. Valdez Tan Keh and
dizon, supra), for the only reason that as they exclusively bear
relation to the ousted legitimate government, they are inoperative
or not applicable to the government established by the occupant;
that the crimes against national security, such as treason and
espionage; inciting to war, correspondence with hostile country,
flight to enemy's country, as well as those against public order,
such as rebellion, sedition, and disloyalty, illegal possession of
firearms, which are of political complexion because they bear
relation to, and are penalized by our Revised Penal Code as crimes
against the legitimate government, are also suspended or become
inapplicable as against the occupant, because they can not be
committed against the latter (Peralta vs. Director of Prisons, supra);
and that, while the offenses against public order to be preserved
by the legitimate government were inapplicable as offenses

against the invader for the reason above stated, unless adopted by
him, were also inoperative as against the ousted government for
the latter was not responsible for the preservation of the public
order in the occupied territory, yet article 114 of the said Revised
Penal Code, was applicable to treason committed against the
national security of the legitimate government, because the
inhabitants of the occupied territory were still bound by their
allegiance to the latter during the enemy occupation;
Considering that, although the military occupant is enjoined to
respect or continue in force, unless absolutely prevented by the
circumstances, those laws that enforce public order and regulate
the social and commercial life of the country, he has, nevertheless,
all the powers of de facto government and may, at his pleasure,
either change the existing laws or make new ones when the
exigencies of the military service demand such action, that is,
when it is necessary for the occupier to do so for the control of the
country and the protection of his army, subject to the restrictions
or limitations imposed by the Hague Regulations, the usages
established by civilized nations, the laws of humanity and the
requirements of public conscience (Peralta vs.Director of
Prisons, supra; 1940 United States Rules of Land Warfare 76, 77);
and that, consequently, all acts of the military occupant dictated
within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the
legitimate government which have not been adopted, as well and
those which, though continued in force, are in conflict with such
laws and orders of the occupier, shall be considered as suspended
or not in force and binding upon said inhabitants;
Considering that, since the preservation of the allegiance or the
obligation of fidelity and obedience of a citizen or subject to his
government or sovereign does not demand from him a positive
action, but only passive attitude or forbearance from adhering to
the enemy by giving the latter aid and comfort, the occupant has
no power, as a corollary of the preceding consideration, to repeal
or suspend the operation of the law of treason, essential for the
preservation of the allegiance owed by the inhabitants to their
legitimate government, or compel them to adhere and give aid and
comfort to him; because it is evident that such action is not
demanded by the exigencies of the military service or not
necessary for the control of the inhabitants and the safety and
protection of his army, and because it is tantamount to practically
transfer temporarily to the occupant their allegiance to the titular
government or sovereign; and that, therefore, if an inhabitant of

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the occupied territory were compelled illegally by the military
occupant, through force, threat or intimidation, to give him aid and
comfort, the former may lawfully resist and die if necessary as a
hero, or submit thereto without becoming a traitor;
Considering that adoption of the petitioner's theory of suspended
allegiance would lead to disastrous consequences for small and
weak nations or states, and would be repugnant to the laws of
humanity and requirements of public conscience, for it would allow
invaders to legally recruit or enlist the Quisling inhabitants of the
occupied territory to fight against their own government without
the latter incurring the risk of being prosecuted for treason, and
even compel those who are not aid them in their military operation
against the resisting enemy forces in order to completely subdue
and conquer the whole nation, and thus deprive them all of their
own independence or sovereignty such theory would sanction
the action of invaders in forcing the people of a free and sovereign
country to be a party in the nefarious task of depriving themselves
of their own freedom and independence and repressing the
exercise by them of their own sovereignty; in other words, to
commit a political suicide;
(2) Considering that the crime of treason against the government
of the Philippines defined and penalized in article 114 of the Penal
Code, though originally intended to be a crime against said
government as then organized by authority of the sovereign people
of the United States, exercised through their authorized
representative, the Congress and the President of the United
States, was made, upon the establishment of the Commonwealth
Government in 1935, a crime against the Government of the
Philippines established by authority of the people of the
Philippines, in whom the sovereignty resides according to section
1, Article II, of the Constitution of the Philippines, by virtue of the
provision of section 2, Article XVI thereof, which provides that "All
laws of the Philippine Islands . . . shall remain operative, unless
inconsistent with this Constitution . . . and all references in such
laws to the Government or officials of the Philippine Islands, shall
be construed, in so far as applicable, to refer to the Government
and corresponding officials under this constitution;
Considering that the Commonwealth of the Philippines was a
sovereign government, though not absolute but subject to certain
limitations imposed in the Independence Act and incorporated as
Ordinance appended to our Constitution, was recognized not only
by the Legislative Department or Congress of the United States in

approving the Independence Law above quoted and the
Constitution of the Philippines, which contains the declaration that
"Sovereignty resides in the people and all government authority
emanates from them" (section 1, Article II), but also by the
Executive Department of the United States; that the late President
Roosevelt in one of his messages to Congress said, among others,
"As I stated on August 12, 1943, the United States in practice
regards the Philippines as having now the status as a government
of other independent nations in fact all the attributes of
complete and respected nationhood" (Congressional Record, Vol.
29, part 6, page 8173); and that it is a principle upheld by the
Supreme Court of the United States in many cases, among them in
the case of Jones vs. United States (137 U.S., 202; 34 Law. ed.,
691, 696) that the question of sovereignty is "a purely political
question, the determination of which by the legislative and
executive departments of any government conclusively binds the
judges, as well as all other officers, citizens and subjects of the
Considering that section I (1) of the Ordinance appended to the
Constitution which provides that pending the final and complete
withdrawal of the sovereignty of the United States "All citizens of
the Philippines shall owe allegiance to the United States", was one
of the few limitations of the sovereignty of the Filipino people
retained by the United States, but these limitations do not away or
are not inconsistent with said sovereignty, in the same way that
the people of each State of the Union preserves its own
sovereignty although limited by that of the United States conferred
upon the latter by the States; that just as to reason may be
committed against the Federal as well as against the State
Government, in the same way treason may have been committed
during the Japanese occupation against the sovereignty of the
United States as well as against the sovereignty of the Philippine
Commonwealth; and that the change of our form of government
from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during the
Commonwealth, because it is an offense against the same
government and the same sovereign people, for Article XVIII of our
Constitution provides that "The government established by this
constitution shall be known as the Commonwealth of the
Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine
independence, the Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines";


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

G. R. No. L-953 September 18, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO
MARCAIDA, accused-appellant.
PAUL, J .:
Satrata of an appeal filed by Pedro Marcaidaque was sentenced for the
crime of treason, after corresponding lavista, to life imprisonment with the
accessories prescribed by law and pay a fine of P10,000 and the shores of
Juico. The appellant points out three errors incurred, according to him, the
Court of Pueblo.1.o Declaring that the accused CITIZENSHIP and loyalty
were sufficiently proven; 2D to give credit to the testimony of prosecution
witnesses; At 3rd and convict the accused of the charge # 3.
The defense contends that the evidence of record does not prove the
Commonwealth. The transcript of the shorthand notes Aue says the
accused is a native of Lopez (a native of Lopez). The defense argues that
the witness said in Tagalog saying. "Panganak ay sa Lopez" "Taga Lopez"
and said It aperece no such thing on the record. If true, it is strange that
the lawyer did not request the Juzgadoque ordered the stenographer to do
so stated in his notes. When a party is not satisfied with the traduction of a
statement of a witness you must ask to be recorded in cars ne only the
translation but also translated the original statement; sepresumira correct
the translation of the official interpreter in failing.
But even admitting - says the defense - that the defendant was born in
Lopez, Quezon province, your cuidadaniafilipina is not properly tested. In
support of this contention invoked Article IV of the Constitution, which
came into force on 15 November 1935. (Article XVI, Section 6,
Constitution.) The view from this cause had lugarel July 15, 1946. If the
defendant I was born, for example, one day after I go into force of the
Constitution, on the day of the hearing it was not more than ten years and
eight mesesde age, and then committed the crime at the age of about nine
years. Although no record date sunacimiento, we are confident, however,
that was not a child of that age when I come into view. Querallado would
not have such a tax felony. Undoubtedly, I was born before and not after
entering into force the Constitution. It can not be accepted, therefore, to its
Article 2 of the Jones Act passed by Congress on August 29, 1916, provides
as follows: "Let all the inhabitants of the Philippines that the April 11 of
milochocientos ninety nine quea were Spanish subjects and then resided in
these Islands and their children born after that date will be considered and
taken as citizens of the Philippines, excepting those who have preferred to

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retain their loyalty to Lacorona of Spain, according to the Treaty of Peace
between the United States and Spain, signed in Paris on December 10 of
1898, and with the exception of those that after that date-citizens, have
some other country ....
Article 4 of the Constitutive Act of the Philippines of 1 July 1902, reads as
follows: "All citizens of the Philippines who live in them and the eleven
deabril 1899 subjects were Spanish residents in these islands and their
children born after that date they will be considered and taken as citizens
of the Philippines and as such conderecho to the protection of the United
States, excepting those who have eligado retain their loyalty to the Crown
of Spain, of According to the Treaty of Peace between the United States
and Spain signed in Paris on December 10 of 1898. "
The accused is called Pedro Marcayda. By its name, it can be Filipino,
Spanish or South American. Nohay proof that a resident of the Philippines
and Spanish subject on 11 April 1899. If you were a resident and was not
subject might not acquire Spanish Filipino CITIZENSHIP that would remain

Customs Administrator (23 Phil. Rep., 321) and subsequent. (Vain against
Insularde Customs Manager, Phil Jur 23, 491;.. United States against Ong
Tianse, Jur Fil 29, 352;.. United States against Ang, 36 Jur Fil, 915;.. Go
Julian against the Government of the Philippine Islands 45 Jur Fil, 301;....
Haw against Insular Customs Manager, Phil Jur 59, 646.) In the case of
Torres and Gallofin against Chim other vezla theory Tan sitting on the issue
was adopted Roa, but the Court It was divided in the proportion of four
times three. Elactual President of the Imperial Court and the Magistrate
were dissidents. Villareal judge felt that the simple birth in the Philippines
does not make one a citizen Filipino; but I concurred in part because of Roa
ladoctrina was applying for more than 20 years. The principle of stare
decisis is the main reason that prompted the majority to re-adopt the
theory of Roa. In his dissent, the current President of the Court said:

If a citizen descended from a Spanish has begun to reside in the Philippines

after the Treaty of Paris, would remain Spanish unless it has naturalized.
Nor is there evidence to that effect; then it is Spanish, abroad.

The majority says nothing in support of the correctness of theRoa ruling,

and seeks simply to justify continued observance STI upon the fact that it
"HAD Been Adhered to and accepted for more than 20 years before the
adoption of the Constitution," and That not " Only this Court but Also lower
courts HAD Followed consistently and invariably it; the executive and
administrative agencies of thegovernment HAD theretofore abide by it; and
the General Public HAD acquiesced in it I do not yield to court esta policy If
we induced the Government.. and the public to follow and accept an error
for some time, it does not seem to be a good policy to continue inducing
them to follow and accept the same mistake eleven discovered. The rule of
stare decisis does not apply to the extent of perpetuating an error (15 CJ,
p. 918.) It is the duty of every court to examine ITS own decisions without
fear and reluctance to revise them (Baker vs. Lorillard, 4 NY, 257.) As was
well said in a case, " I hold itto be the duty of esta court to examine freely
ITS own decisions, and, When satisfied That it has fallen into a mistake, to
correct the error by Its Own overruling decision. An Acknowledged mistake
must be more venerable and more inveterate than it can be made by any
single decision before it can claim Impunity upon the principle of stare
decisis. "(Leavitt vs. Blatchaford, NY 17, 521, 523.)" Precedents are to be
Regarded as the great storehouse of experience; not always to be
Followed, but to be Looked to as beacon lights in the progress of the
judicial investigation. "(Per Bartley, CJ, in Leavitt vs. Morrow, 6 Ohio St., 71,
78.) Their" authority must yield Often to the force of reason, and to the
paramount Demands of justice as well as to the decencies of civilized
society, and the law ought to speak with a voice responsive to These
Demands. "(Norton vs. Randolph, 176 Ala., 381, 383, 58 S. 283.) "(Torres
and Gallofin against Tan Chim, 69 Phil., 518.)

Chua peace Uang by the mere fact of being born in the Philippines was
declared Philippine Spanish because it was not sibdita or daughter of a
Spanish subject on 11 April 1899. (Chua against Secretary of Labor, 68
Phil., 649.) This doctrine He has implicitly revoked Insular de Roa against

In matters of Tan Chong against Secretary of Labor, p. 249, ante, and Lam
Swee Sang against Philippine Commonwealth, p. 249, before, we definitely
declared abandoned this theory and adopted the deChua against Secretary
of Labor. The reason is simple. The theory of jus soli in America is absolute:

If it was a Spanish subject and resided in the Philippines on April 11, 1899,
automatically he became cuidadanofilipino unless you have chosen to
retain the Spanish CITIZENSHIP; but as there is no evidence to that effect,
the presumption is that he is Filipino.
If I were born after April 11, 1899 to parents who were Spanish subjects
would follow the nationality of those: Spanish, if your parents have wanted
to retain their loyalty Crown wing Spain, and Filipino, if they chose to lose
it. No evidence presented in one way or another: you can serentonces
Spanish or Filipino.
If I were born after April 11, 1899 Filipino parents is Filipino.
It may happen that a descendant of a South American has been
established in Quezon province after the signing of the Treaty of Paris; if his
father would not benefit from the provisions of the law of naturalization,
then the defendant is abroad segue nationality of his father.


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American elsimple birth according to its constitution and the decision in
United States v Wong Kim Ark (U. S. 169, 649). The American Constitution
never came into force in the Philippines. The theory of jus soli in the
Philippines in accordance with the law of 1 July 1902, approved by the
American Congress, according to the Treaty of Paris, which has
dedeterminar is conditional, that is born in the Philippines Filipino
esconsiderado cuidadano if I was a resident and a Spanish subject or child
of a resident and a Spanish subject in April 11, 1899. If it abroad or child of
an alien in aqeulla date can not be Filipino citizen.

be punished by rigorous imprisonment to death Shall pay a fine and not to

Exceed 20,000 pesos. " (Executive Order No. 44, May 31, 1945)

The defendant then, according to the evidence enautos may be Filipino or


It revoked the original ruling. His immediate release with the costs of trade
is ordered.

Under the Treason Act No. 292 of the Civil Commission, every resident in
the Philippines, owing allegiance to the UnitedStates or the Government of
the Philippine Islands, heciere them formare war or common cause with its
enemies and helping them socorriendoles inside or outside those Islands,
committed the crime treason. Section 1 of the Act is unasimple
transplantation over the provisions of the American Criminal Code that is
representations of the following lines: "Whoever, owe owing allegiance to
the United States, Levies War Against them or adhere to Their enemies,
giving them aid and comfort Within the United States or elsewhere, is
guilty of treason. " (Sec 1, Crim Code: RS, 5331 sec; Mar. 4.1909, c 321,
1, 35 Stat, 1088.......)
"Treason Against the United States," says the American Constitution, "shall
consist only in levying Against them, or in adhering to Their Enemies,
giving them aid and comfort." (Section 3 [1] Article III.)
In both extranjros as American nationals can commit the crime of treason.
Foreigners owe allegiance to the government of America during the time of
residence. (Carlisle vs. US, 21 Law ed, 426;.... Raditch vs. Hutchins, 24 Law
ed, 409.) The English hold the same theory. (De Jager vs. Attorney General
of Natal 8 Ann. Cas., 76.) It is not necessary for a citizen to be American to
commit the crime of treason. But the Revised Penal Code have excluded
the foreign national can only commit. Article 114 reads: "Whoever, owing
allegiance to the United States or the Government of the Philippine Islands,
sinser foreign nationals, do them a war or formare common cause with its
enemies, helping or socorriendoles inside or outside these Islands , will be
punished with the punishment of temporal death and a fine not exceeding
twenty thousand pesos seclusion. " Executive Order No.44, recognizing
that it was not possible under the Revised Penal Code punished for the
crime of treason against foreign residents in the Philippines who helped the
enemies, amended Article 114, adding a paragraph representations of the
following lines: "Likewise , any alien, Residing in the Philippine Islands,
WHO commits acts of treason as defined in paragraph 1 of this article Shall

If the accused is Filipino, he owes allegiance to the Commonwealth

Government and must be condemned for treason; sies abroad but it can
not be punished for acts committed prior to the amendment of Article 114
of the Revised CodigoPenal. As the evidence does not establish clearly that
the defendant is unamanera Filipino, it can not be criminally responsible for
the crime of treason.

Separate Opinions
PERFECTO, J., concurring:
Charged in the People's Court with the crime of treason on four courts,
appellant was found guilty only on count No. 3 and sentenced to reclusion
perpetua, with the accessory penalties prescribed by law, and to pay a fine
of P1,000 and the costs.
No evidence was presented by the defense. The prosecution presented the
testimonies of four witnesses.
1. Illuminada Zurbano, 40 years, widow, residing at Lopez, Tayabas,
testified that she knows appellant as a"Japanese soldier," because "he was
already carrying a revolver while going around our town, and he used to
arrest guerrillas and took them to the garrison." On April 13, 1944,
appellant was in the company of San Juan "and they arrested my brother
Epimaco Zurbano, in front of theCine and they took my brother to the
garrison." The witness brought food to her brother from April 13 to the 23d.
After that she was told by the Japanese that her brother was no longer in
the garrison. Since then shedid not hear anything from her brother. When
he made the arrest, appellant "was in civilian clothing, but always carried a
revolver around his waist." There was an organization in Lopez known as
"Yoin," founded by San Juan and appellant. The members of the
organization"used to go around the houses of the guerrillas and watched
them." The witness saw the arrest because "we were in the theater looking
at the people going out. I was outside the theater. Outside the building."
There were many people; around eighty. The arrest was made about 7
o'clock in the evening. There were lights. Besides Lamberto San Juan,
Alejandro Enguanso was also in the company of appellant. The witness did

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not know whether the weapon carried by appellant was a revolver or a
pistol because "it was hidden." When the arrest was made, the witness was
at about twelve meters away from appellant. The witness was
accompanied by Mariano Catan. She said: "My companion was Mariano
Catan," her brother-in-law. The witness does not know where the "Yoin" was
organized. "What I know was that he came to our place together with other
people to organize it." Epimaco was 23 years old, a guerrillero under
General Gaudencio Vera. The witness was at the place because the moon
"was then bright and "we were having a walk."
2. Marianito Catan, 34 years, married, merchant, testified that "I remember
that on April 13, 1944, while I was in front of the Cine in Lopez, Tayabas,
my brother (Epimaco Zurbano) was arrested by the accused." The arrest
was made by appellant and Lamberto San Jaun. The witness did not ask
why. "I simply followed my brother and then went home and reported the
case to my parents."His brother was taken to the Japanese garrison, and
since his arrest on April 13, the witness has not heard of his brother. The
witness did not hear about the organization known as "Yoin." Epimaco
Zurbano "is my brother-in-law." He was arrested at 7 o'clock p.m. "in front
of the cine" and, answering the question whether he was "the only person
present" when the arrest took place, said: "I was the only one there. I was
taking a walk." Only Lamberto San Juan and appellant were the persons
who arrested Epimaco, and the witness was sure that there was"no other."
The witness was about ten meters away from them. About half an hour
elapsed from the moment of the arrest to the time the witness reported the
incident to his parents. Lamberto San Juan was carrying an exposed
revolver on his right hip. It had a shell handle. Appellant was also carrying
a revolver "on his right hip," also visible because "it was outside the polo
shirt." Appellant was wearing a polo shirt.
Illuminada Zurbano said that appellant was carrying his revolver "on his
left hip" and was covered by his"camisa china," and that Alejandro
Enguanso "was always with" Lamberto San Juan and appellant.
On re-direct examination, Marianito Catan emphasized that he was the only
one who was present at the placeof the arrest, adding: "I am sure of that. I
was the only one who was in front of cine." No one entered the cine. "A
polo shirt is different from a camisa china. "The witness knows Alejandro
Enguanso who was not in the company of Lamberto San Juan and
appellant. Answering also questions from one judge, the witness repeated
that he did not see his sister-in-law Illuminada Zurbano in the place of the
3. Domingo Villasoto, 34, married, farmer, testified that he knows appellant
because the same arrested his father Sixto Targa on August 12, 1944,

because theysuspected him of being a guerrilla. "We took food to him (to
his father), but after one month we did not know where he was taken. He
did not return any more." The witness heard about the "Yoin" which is the
"same as Ganap soldiers of the Japanese." Sixto Targa was the father-in-law
of the witness. The arrest of Sixto Targa took placeat 3 o'clock in the
afternoon. Appellant was accompanied by four companions, but he was the
only one who went up the house. They were all Ganaps. Those present at
his arrest were Pastora Targa, wife of the witness, Porfirio Targa, his
brother-in-law and his wife, Flora Salvacion, and Silveria Abmes, wife of
Sixto. The witness did not try to follow his father-in-law after his arrest.
4. Luisa de Mondragon. The testimony of this witness was vigorously
objected to by the defense, because she is not mentioned in the
information as one of the witnesses for the prosecution. The lower court
allowed her to testify, and she testified that she is 48 years old, widow, and
that at about 7 o'clock of April 13, 1944, "I came from the house of the
mayor because I was looking for my husband" who was missing because
the Japanese took him. She saw appellant in Real Street watching for
people. Epimaco Zurbano was looking around Real Street. Appellant
arrested him. Appellant was accompanied by Enguanso and another
person. The witness knows Pio Tabien, Dominador Argosina Jr., Mamerto
Canlar, Felipe Marquez and Miguel Marquez. All of them were arrested and
killed by the Japanese "on orders of these people." When appellant
arrested Epimaco Zurbano at about 7 o'clock on April 13, 1944, he was
accompanied by Pablo Cortes and Benito Villaruz besides Enguanso. They
were only four and no more. Appellant was wearing a white camisa china.
"He had a revolver behind his body covered by his camisa." Atthe time of
the arrest of Epimaco there were many people, but the witness recognized
only Enguanso and appellant.
From the foregoing, it appears that, although three witnesses testified as to
the arrest of Epimaco Zurbano effected by appellant to be later brought to
the Japanese garrison, for all legal purposes, it is the same as if no witness
had testified at all. The second witness contradicted the first one on very
important facts related to the arrest, and the third contradicted both the
first and the second. The reciprocal contradictions between them have the
effect of engaging the three witnesses for the prosecution in a veritable
three-cornered fight. A striking characteristic of it is the fact that the first
witness is the sister of Epimaco Zurbano, the arrested person, and the
second witness is a brother-in-law of both, the firts witness and the
arrested person, and both have mutually contradicted each other on the
following essential facts to their credibility as witnesses:
(a) As to the presence of about eighty persons at the scene;


Crim 2
(b) As to whether Mariano or Marianito Catan was, as stated by
Illuminada Zurbano, "my companion;"
(c) As to the presence of Illuminada Zurbano at theplace of the
(d) As to whether appellant was wearing camisa china or polo shirt;

the testimony of one of them without rejecting at the same time the
testimonies of the other two. Even without the two-witness rule in treason
cases, there is no legal basis to convict appellant upon the testimony of
any one of the three witnesses, as each one is belied by the other two.
Each of them is unreliable under the maxim "falsus in unus, falsus in
We vote to acquit appellant.

(e) As to whether appellant had his revolver at his left or right hip;
(f) As to whether said weapon was exposed and visible or not;
(g) As to whether Alejandro Enguanso was accompanying appellant
or was not in the place at the time of the arrest.

On the merits of the case I agree to the foregoing concurring opinion.

To increase the prosecution's predicament, comes Luisa de Mondragon, a

third witness in discord, by further belying the first two witnesses when she
testified that appellant was accompanied by Pablo Cortes and Benito
Villaruz, but not by Lamberto San Juan, the one, who, according to the first
two witnesses, was accompanying him.
As a general rule, the testimony of one witness is enough, if truthful or
reasonably credible, to prove the truth of a controverted fact in court. The
special nature of the crime of treason requires that the accused be
afforded a special protection not required in other cases, so as to avoid a
miscarriage of justice. The extreme seriousness of the crime, for which
death is one of the penalties provided by law, and the fact that the crime is
committed on abnormal times, when large portions of the people are
undergoing nervous hypertension, and when small differences may and in
mortal enmity, which may wipe out all scruples in sacrificing the truth, the
law requires that, at least, two witnesses must testify as to overt acts of
treason, if the same should beaccepted by the tribunals as legal basis to
condemn a person as a traitor.
These two witnesses must equally be truthful and credible. It is not enough
that the testimony of one of them can be relied upon on the existence of
the overt act in controversy, while the other cannot. The requirement of
the law is not complied with because three witnesses or any greater
number of them have testified as to the same overt act if among them
there are not two whose testimonies are believed, by a competent court,
beyond all reasonable doubt. In the present case each and every one of the
three witnesses for the prosecution testified to the effect of belying the
testimonies of the other two, in such a way that it is not possible to accept

PADILLA, JJ., dissenting:





The findings of the People's Court are fully sustained by the testimony of
two or more direct witnesses. The defendant did not introduce any
evidence. The sole ground of the majority decision for reversing the lower
court's judgment is that the defendant has not been shown to be a Filipino
I disagree with this conclusion. Although there is no direct evidence of the
defendant's citizenship, Luisa de Mondragon testified that she "knew him
because he is a native of Lopez and he is always there." This testimony has
not been denied. "In the absence of proof to the contrary every man is
considered a citizen of the country in which he resides." "A man is ... to be
regarded as a citizen of his native state until it can be shown that he has
acquired citizenship elsewhere. Every person at his birth is presumptively a
citizen or a subject of the state of his nativity, and where his parents were
then both subjectsof that state, the presumption is conclusive." (11 C.
J.,786, citing numerous authorities including decisions of the Federal
Supreme Court and lower U. S. courts.)


Crim 2

G.R. No. 17958

February 27, 1922

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

Court of First Instance of Sulu with the crime of piracy. A demurrer was
interposed by counsel de officio for the Moros, based on the grounds that
the offense charged was not within the jurisdiction of the Court of First
Instance, nor of any court of the Philippine Islands, and that the facts did
not constitute a public offense, under the laws in force in the Philippine
Islands. After the demurrer was overruled by the trial judge, trial was had,
and a judgment was rendered finding the two defendants guilty and
sentencing each of them to life imprisonment (cadena perpetua), to return
together with Kinawalang and Maulanis, defendants in another case, to the
offended parties, the thirty-nine sacks of copras which had been robbed, or
to indemnify them in the amount of 924 rupees, and to pay a one-half part
of the costs.
A very learned and exhaustive brief has been filed in this court by the
attorney de officio. By a process of elimination, however, certain questions
can be quickly disposed of.

The days when pirates roamed the seas, when picturesque buccaneers like
Captain Avery and Captain Kidd and Bartholomew Roberts gripped the
imagination, when grostesque brutes like Blackbeard flourished, seem far
away in the pages of history and romance. Nevertheless, the record before
us tells a tale of twentieth century piracy in the south seas, but stripped of
all touches of chivalry or of generosity, so as to present a horrible case of
rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for
Peta, another Dutch possession. In one of the boats was one individual, a
Dutch subject, and in the other boat eleven men, women, and children,
likewise subjects of Holland. After a number of days of navigation, at about
7 o'clock in the evening, the second boat arrived between the Islands of
Buang and Bukid in the Dutch East Indies. There the boat was surrounded
by six vintasmanned by twenty-four Moros all armed. The Moros first asked
for food, but once on the Dutch boat, too for themselves all of the cargo,
attacked some of the men, and brutally violated two of the women by
methods too horrible to the described. All of the persons on the Dutch
boat, with the exception of the two young women, were again placed on it
and holes were made in it, the idea that it would submerge, although as a
matter of fact, these people, after eleven days of hardship and privation,
were succored violating them, the Moros finally arrived at Maruro, a Dutch
possession. Two of the Moro marauder were Lol-lo, who also raped one of
the women, and Saraw. At Maruro the two women were able to escape.

The proven facts are not disputed. All of the elements of the crime of
piracy are present. Piracy is robbery or forcible depredation on the high
seas, without lawful authority and done animo furandi, and in the spirit and
intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover
court and as is again done in this court, that the Court of First Instance was
without jurisdiction of the case. Pirates are in law hostes humani generis.
Piracy is a crime not against any particular state but against all mankind. It
may be punished in the competent tribunal of any country where the
offender may be found or into which he may be carried. The jurisdiction of
piracy unlike all other crimes has no territorial limits. As it is against all so
may it be punished by all. Nor does it matter that the crime was committed
within the jurisdictional 3-mile limit of a foreign state, "for those limits,
though neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820],
5 Wheat., 184.)
The most serious question which is squarely presented to this court for
decision for the first time is whether or not the provisions of the Penal Code
dealing with the crime of piracy are still in force. Article 153 to 156 of the
Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the
subjects of another nation not at war with Spain, shall be punished
with a penalty ranging from cadena temporal to cadena perpetua.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi,
Sulu, Philippine Islands. There they were arrested and were charged in the


Crim 2
If the crime be committed against nonbelligerent subjects of
another nation at war with Spain, it shall be punished with the
penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first
paragraph of the next preceding article shall suffer the penalty
of cadena perpetua or death, and those who commit the crimes
referred to in the second paragraph of the same article,
from cadena temporal to cadena perpetua:

Whenever they have seized some vessel by boarding

or firing upon the same.


Whenever the crime is accompanied by murder,

homicide, or by any of the physical injuries specified in
articles four hundred and fourteen and four hundred
and fifteen and in paragraphs one and two of article
four hundred and sixteen.


Whenever it is accompanied by any of the offenses

against chastity specified in Chapter II, Title IX, of this


Whenever the pirates have abandoned any persons

without means of saving themselves.

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

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

designed to secure good order and peace in the community, which are
strictly of a municipal character, continue until by direct action of the new
government they are altered or repealed. (Chicago, Rock Islands, etc., R.
Co. vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the
Philippines by the Instructions of President McKinley of May 19, 1898, to
General Wesley Meritt, the Commanding General of the Army of
Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and
supreme, and immediately operate upon the political condition of
the inhabitants, the municipal laws of the conquered territory, such
as affect private rights of person and property, and provide for the
punishment of crime, are considered as continuing in force, so far
as they are compatible with the new order of things, until they are
suspended or superseded by the occupying belligerent; and
practice they are not usually abrogated, but are allowed to remain
in force, and to be administered by the ordinary tribunals,
substantially as they were before the occupations. This enlightened
practice is so far as possible, to be adhered to on the present
occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1.
See also General Merritt Proclamation of August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing
with piracy were meant to include the Philippine Islands. Article 156 of the
Penal Code in relation to article 1 of the Constitution of the Spanish
Monarchy, would also make the provisions of the Code applicable not only
to Spaniards but to Filipinos.

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

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

The general rules of public law recognized and acted on by the United
States relating to the effect of a transfer of territory from another State to
the United States are well-known. The political law of the former
sovereignty is necessarily changed. The municipal law in so far as it is
consistent with the Constitution, the laws of the United States, or the
characteristics and institutions of the government, remains in force. As a
corollary to the main rules, laws subsisting at the time of transfer,

The Constitution of the United States declares that the Congress shall have
the power to define and punish piracies and felonies committed on the
high seas, and offenses against the law of nations. (U.S. Const. Art. I, sec.
8, cl. 10.) The Congress, in putting on the statute books the necessary
ancillary legislation, provided that whoever, on the high seas, commits the
crime of piracy as defined by the law of nations, and is afterwards brought
into or found in the United States, shall be imprisoned for life. (U.S. Crim.


Crim 2
Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.) The
framers of the Constitution and the members of Congress were content to
let a definition of piracy rest on its universal conception under the law of
It is evident that the provisions of the Penal Code now in force in the
Philippines relating to piracy are not inconsistent with the corresponding
provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United
States. A logical construction of articles of the Penal Code, like the articles
dealing with the crime of piracy, would be that wherever "Spain" is
mentioned, it should be substituted by the words "United States" and
wherever "Spaniards" are mentioned, the word should be substituted by
the expression "citizens of the United States and citizens of the Philippine
Islands." somewhat similar reasoning led this court in the case of United
States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as
found in the Penal Code a limited meaning, which would no longer
comprehend all religious, military, and civil officers, but only public officers
in the Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code
would read as follows:
The crime of piracy committed against citizens of the United States
and citizens of the Philippine Islands, or the subjects of another
nation not at war with the United States, shall be punished with a
penalty ranging from cadena temporal to cadena perpetua.

circumstance of nocturnity, and compensating the same by the one
mitigating circumstance of lack of instruction provided by article 11, as
amended, of the Penal Code, sentenced the accused to life imprisonment.
At least three aggravating circumstances, that the wrong done in the
commission of the crime was deliberately augmented by causing other
wrongs not necessary for its commission, that advantage was taken of
superior strength, and that means were employed which added ignominy
to the natural effects of the act, must also be taken into consideration in
fixing the penalty. Considering, therefore, the number and importance of
the qualifying and aggravating circumstances here present, which cannot
be offset by the sole mitigating circumstance of lack of instruction, and the
horrible nature of the crime committed, it becomes our duty to impose
capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of
the imposition of the death penalty upon the defendant and appellant Lo-lo
(the accused who raped on of the women), but is not unanimous with
regard to the court, Mr. Justice Romualdez, registers his nonconformity. In
accordance with provisions of Act No. 2726, it results, therefore, that the
judgment of the trial court as to the defendant and appellant Saraw is
affirmed, and is reversed as to the defendant and appellant Lol-lo, who is
found guilty of the crime of piracy and is sentenced therefor to be hung
until dead, at such time and place as shall be fixed by the judge of first
instance of the Twenty-sixth Judicial District. The two appellants together
with Kinawalang and Maulanis, defendants in another case, shall indemnify
jointly and severally the offended parties in the equivalent of 924 rupees,
and shall pay a one-half part of the costs of both instances. So ordered.

If the crime be committed against nonbelligerent subjects of

another nation at war with the United States, it shall be punished
with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of
piracy, notably articles 153 and 154, to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in
relation to article 154. There are present at least two of the circumstances
named in the last cited article as authorizing either cadena perpetua or
death. The crime of piracy was accompanied by (1) an offense against
chastity and (2) the abandonment of persons without apparent means of
saving themselves. It is, therefore, only necessary for us to determine as to
whether the penalty of cadena perpetua or death should be imposed. In
this connection, the trial court, finding present the one aggravating



Crim 2

G.R. No. 111709

August 30, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN,

CHEONG SAN HIONG, and JOHN DOES, accused-appellants.
This is one of the older cases which unfortunately has remained in docket
of the Court for sometime. It was reassigned, together with other similar
cases, to undersigned ponente in pursuance of A.M. No. 00-9-03-SC dated
February 27, 2001.
In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by
the PNOC Shipping and Transport Corporation, loaded with 2,000 barrels of
kerosene, 2,600 barrels of regular gasoline, and 40,000 barrels of diesel oil,
with a total value of P40,426,793,87, was sailing off the coast of Mindoro
near Silonay Island.
The vessel, manned by 21 crew members, including Captain Edilberto Liboon, Second Mate Christian Torralba, and Operator Isaias Ervas, was
suddenly boarded, with the use of an aluminum ladder, by seven fully
armed pirates led by Emilio Changco, older brother of accused-appellant
Cecilio Changco. The pirates, including accused-appellants Tulin, Loyola,
and Infante, Jr. were armed with M-16 rifles, .45 and .38 caliber handguns,
and bolos. They detained the crew and took complete control of the vessel.
Thereafter, accused-appellant Loyola ordered three crew members to paint
over, using black paint, the name "M/T Tabangao" on the front and rear
portions of the vessel, as well as the PNOC logo on the chimney of the
vessel. The vessel was then painted with the name "Galilee," with registry
at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the
while sending misleading radio messages to PNOC that the ship was
undergoing repairs.
PNOC, after losing radio contact with the vessel, reported the
disappearance of the vessel to the Philippine Coast Guard and secured the
assistance of the Philippine Air Force and the Philippine Navy. However,
search and rescue operations yielded negative results. On March 9, 1991,
the ship arrived in the vicinity of Singapore and cruised around the area
presumably to await another vessel which, however, failed to arrive. The
pirates were thus forced to return to the Philippines on March 14, 1991,



Crim 2
arriving at Calatagan, Batangas on March 20, 1991 where it remained at

c. On May 20, 1991, accused-appellants Hiong and Changco were arrested

at the lobby of Alpha Hotel in Batangas City.

On March 28, 1991, the "M/T Tabangao" again sailed to and anchored
about 10 to 18 nautical miles from Singapore's shoreline where another
vessel called "Navi Pride" anchored beside it. Emilio Changco ordered the
crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi
Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi
Pride" in receiving the cargo. The transfer, after an interruption, with both
vessels leaving the area, was completed on March 30, 1991.

On October 24, 1991, an Information charging qualified piracy or violation

of Presidential Decree No. 532 (Piracy in Philippine Waters) was filed
against accused-appellants, as follows:

On March 30, 1991, "M/T Tabangao" returned to the same area and
completed the transfer of cargo to "Navi Pride."
On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the
vessel remained at sea. On April 10, 1991, the members of the crew were
released in three batches with the stern warning not to report the incident
to government authorities for a period of two days or until April 12, 1991,
otherwise they would be killed. The first batch was fetched from the
shoreline by a newly painted passenger jeep driven by accused-appellant
Cecilio Changco, brother of Emilio Changco, who brought them to Imus,
Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in
proceeding to their respective homes. The second batch was fetched by
accused-appellant Changco at midnight of April 10, 1991 and were brought
to different places in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of the
crew, called the PNOC Shipping and Transport Corporation office to report
the incident. The crew members were brought to the Coast Guard Office for
investigation. The incident was also reported to the National Bureau of
Investigation where the officers and members of the crew executed sworn
statements regarding the incident.

The undersigned State Prosecutor accuses ROGER P. TULIN,

and CHEONG SAN HIONG, and nine (9) other JOHN DOES of
qualified piracy (Violation of P.D. No. 532), committed as follows:
That on or about and during the period from March 2 to
April 10, 1991, both dates inclusive, and for sometime prior
and subsequent thereto, and within the jurisdiction of this
Honorable Court, the said accused, then manning a motor
launch and armed with high powered guns, conspiring and
confederating together and mutually helping one another,
did then and there, wilfully, unlawfully and feloniously fire
upon, board and seize while in the Philippine waters M/T
PNOC TABANGCO loaded with petroleum products, together
with the complement and crew members, employing
violence against or intimidation of persons or force upon
things, then direct the vessel to proceed to Singapore
where the cargoes were unloaded and thereafter returned
to the Philippines on April 10, 1991, in violation of the
aforesaid law.

(pp. 119-20, Rollo.)

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the pirates
were present at U.K. Beach, Balibago, Calatagan, Batangas. After three
days of surveillance, accused-appellant Tulin was arrested and brought to
the NBI headquarters in Manila.

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the
Regional Trial Court of the National Capital Judicial Region stationed in
Manila. Upon arraignment, accused-appellants pleaded not guilty to the
charge. Trial thereupon ensued.

b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at

Aguinaldo Hi-way by NBI agents as the latter were pursuing the
mastermind, who managed to evade arrest.

Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some

inconsistencies in their testimony as to where they were on March 1, 1991,
maintained the defense of denial, and disputed the charge, as well as the


Crim 2
transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them
claimed having their own respective sources of livelihood. Their story is to
the effect that on March 2, 1991, while they were conversing by the beach,
a red speedboat with Captain Edilberto Liboon and Second Mate Christian
Torralba on board, approached the seashore. Captain Liboon inquired from
the three if they wanted to work in a vessel. They were told that the work
was light and that each worker was to be paid P3,000.00 a month with
additional compensation if they worked beyond that period. They agreed
even though they had no sea-going experience. On board, they cooked,
cleaned the vessel, prepared coffee, and ran errands for the officers. They
denied having gone to Singapore, claiming that the vessel only went to
Batangas. Upon arrival thereat in the morning of March 21, 1991, they
were paid P1,000.00 each as salary for nineteen days of work, and were
told that the balance would be remitted to their addresses. There was
neither receipt nor contracts of employment signed by the parties.
Accused-appellant Changco categorically denied the charge, averring that
he was at home sleeping on April 10, 1991. He testified that he is the
younger brother of Emilio Changco, Jr.
Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced
evidence that he studied in Sydney, Australia, obtaining the "Certificate" as
Chief Officer, and later completed the course as a "Master" of a vessel,
working as such for two years on board a vessel. He was employed at Navi
Marine Services, Pte., Ltd. as Port Captain. The company was engaged in
the business of trading petroleum, including shipoil, bunker lube oil, and
petroleum to domestic and international markets. It owned four vessels,
one of which was "Navi Pride."
On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio
Changco and his cohorts, Hiong's name was listed in the company's letter
to the Mercantile Section of the Maritime Department of the Singapore
government as the radio telephone operator on board the vessel "Ching
The company was then dealing for the first time with Paul Gan, a
Singaporean broker, who offered to sell to the former bunker oil for the
amount of 300,000.00 Singapore dollars. After the company paid over onehalf of the aforesaid amount to Paul Gan, the latter, together with Joseph
Ng, Operations Superintendent of the firm, proceeded to the high seas on
board "Navi Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed through on March 27, 1991.
Hiong, upon his return on board the vessel "Ching Ma," was assigned to

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



Crim 2
appellant Cecilio Changco, Hiong found out that the vessel was not
arriving. Hiong was thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered convicting accused-appellants
of the crime charged. The dispositive portion of said decision reads:
WHEREFORE, in the light of the foregoing considerations, judgment
is hereby rendered by this Court finding the accused Roger Tulin,
Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco guilty
beyond reasonable doubt, as principals, of the crime of piracy in
Philippine Waters defined in Section 2(d) of Presidential Decree No.
532 and the accused Cheong San Hiong, as accomplice, to said
crime. Under Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death. However, considering
that, under the 1987 Constitution, the Court cannot impose the
death penalty, the accused Roger Tulin, Virgilio Loyola, Andres
Infante, Jr., and Cecilio Changco are hereby each meted the penalty
of RECLUSION PERPETUA, with all the accessory penalties of the
law. The accused Cheong San Hiong is hereby meted the penalty of
RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal
Code in relation to Section 5 of PD 532. The accused Roger Tulin,
Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco are hereby
ordered to return to the PNOC Shipping and Transport Corporation
the "M/T Tabangao" or if the accused can no longer return the
same, the said accused are hereby ordered to remit, jointly and
severally, to said corporation the value thereof in the amount of
P11,240,000.00, Philippine Currency, with interests thereon, at the
rate of 6% per annum from March 2, 1991 until the said amount is
paid in full. All the accused including Cheong San Hiong are hereby
ordered to return to the Caltex Philippines, Inc. the cargo of the
"M/T Tabangao", or if the accused can no longer return the said
cargo to said corporation, all the accused are hereby condemned
to pay, jointly and severally, to the Caltex Refinery, Inc., the value
of said cargo in the amount of P40,426,793.87, Philippine Currency
plus interests until said amount is paid in full. After the accused
Cheong San Hiong has served his sentence, he shall be deported to
All the accused shall be credited for the full period of their
detention at the National Bureau of Investigation and the City Jail
of Manila during the pendency of this case provided that they
agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail of Manila and the National Bureau of
Investigation. With costs against all the accused.


(pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accusedappellants may be summarized as follows:
Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O.
Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert
that the trial court erred in allowing them to adopt the proceedings taken
during the time they were being represented by Mr. Tomas Posadas, a nonlawyer, thereby depriving them of their constitutional right to procedural
due process.
In this regard, said accused-appellants narrate that Mr. Posadas entered his
appearance as counsel for all of them. However, in the course of the
proceedings, or on February 11, 1992, the trial court discovered that Mr.
Posadas was not a member of the Philippine Bar. This was after Mr. Posadas
had presented and examined seven witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco
uniformly contend that during the custodial investigation, they were
subjected to physical violence; were forced to sign statements without
being given the opportunity to read the contents of the same; were denied
assistance of counsel, and were not informed of their rights, in violation of
their constitutional rights.
Said accused-appellants also argue that the trial court erred in finding that
the prosecution proved beyond reasonable doubt that they committed the
crime of qualified piracy. They allege that the pirates were outnumbered by
the crew who totaled 22 and who were not guarded at all times. The crew,
so these accused-appellants conclude, could have overpowered the alleged
Cheong San Hiong
In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect
obliterated the crime committed by him; (2) the trial court erred in



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

On the first issue, the record reveals that a manifestation (Exhibit "20",
Record) was executed by accused-appellants Tulin, Loyola, Changco, and
Infante, Jr. on February 11, 1991, stating that they were adopting the
evidence adduced when they were represented by a non-lawyer. Such
waiver of the right to sufficient representation during the trial as covered
by the due process clause shall only be valid if made with the full
assistance of a bona fide lawyer. During the trial, accused-appellants, as
represented by Atty. Abdul Basar, made a categorical manifestation that
said accused-appellants were apprised of the nature and legal
consequences of the subject manifestation, and that they voluntarily and
intelligently executed the same. They also affirmed the truthfulness of its
contents when asked in open court (tsn, February 11, 1992, pp. 7-59).
It is true that an accused person shall be entitled to be present and to
defend himself in person and by counsel at every stage of the proceedings,
from arraignment to promulgation of judgment (Section 1, Rule 115,
Revised Rules of Criminal Procedure). This is hinged on the fact that a
layman is not versed on the technicalities of trial. However, it is also
provided by law that "[r]ights may be waived, unless the waiver is contrary
to law, public order, public policy, morals, or good customs or prejudicial to
a third person with right recognized by law." (Article 6, Civil Code of the
Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion,
the accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect his rights
without the assistance of counsel." By analogy, but without prejudice to the
sanctions imposed by law for the illegal practice of law, it is amply shown
that the rights of accused-appellants were sufficiently and properly
protected by the appearance of Mr. Tomas Posadas. An examination of the
record will show that he knew the technical rules of procedure. Hence, we
rule that there was a valid waiver of the right to sufficient representation
during the trial, considering that it was unequivocally, knowingly, and
intelligently made and with the full assistance of a bona fidelawyer, Atty.
Abdul Basar. Accordingly, denial of due process cannot be successfully
invoked where a valid waiver of rights has been made (People vs. Serzo,
274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]).
However, we must quickly add that the right to counsel during custodial
investigation may not be waived except in writing and in the presence of
Section 12, Article III of the Constitution reads:
SECTION 12. (1) Any person under investigation for the commission
of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel



Crim 2
preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado, or other similar forms
of detention are prohibited.
(3) Any confession or admission obtained in violation of this or
Section 17 hereof shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations
of this section as well as compensation to and rehabilitation of
victims of torture or similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which
gave birth to the so-called Miranda doctrine which is to the effect that prior
to any questioning during custodial investigation, the person must be
warned that he has a right to remain silent, that any statement he gives
may be used as evidence against him, and that he has the right to the
presence of an attorney, either retained or appointed. The defendant may
waive effectuation of these rights, provided the waiver is made voluntarily,
knowingly, and intelligently. The Constitution even adds the more stringent
requirement that the waiver must be in writing and made in the presence
of counsel.
Saliently, the absence of counsel during the execution of the so-called
confessions of the accused-appellants make them invalid. In fact, the very
basic reading of the Miranda rights was not even shown in the case at bar.
Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit
from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix
Frankfurter in the celebrated case of Nardone vs. United States (308 U.S.
388 [1939]). According to this rule, once the primary source (the "tree") is
shown to have been unlawfully obtained, any secondary or derivative
evidence (the "fruit") derived from it is also inadmissible. The rule is based
on the principle that evidence illegally obtained by the State should not be
used to gain other evidence because the originally illegally obtained
evidence taints all evidence subsequently obtained (People vs. Alicando,
251 SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial
confessions of accused-appellants, without a valid waiver of the right to
counsel, are inadmissible and whatever information is derived therefrom
shall be regarded as likewise inadmissible in evidence against them.

However, regardless of the inadmissibility of the subject confessions, there

is sufficient evidence to convict accused-appellants with moral certainty.
We agree with the sound deduction of the trial court that indeed, Emilio
Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, and
Infante, Jr. did conspire and confederate to commit the crime charged. In
the words of then trial judge, now Justice Romeo J. Callejo of the Court of
. . . The Prosecution presented to the Court an array of witnesses,
officers and members of the crew of the "M/T Tabangao" no less,
who identified and pointed to the said Accused as among those
who attacked and seized, the "M/T Tabangao" on March 2, 1991, at
about 6:30 o'clock in the afternoon, off Lubang Island, Mindoro,
with its cargo, and brought the said vessel, with its cargo, and the
officers and crew of the vessel, in the vicinity of Horsebough
Lighthouse, about sixty-six nautical miles off the shoreline of
Singapore and sold its cargo to the Accused Cheong San Hiong
upon which the cargo was discharged from the "M/T Tabangao" to
the "Navi Pride" for the price of about $500,000.00 (American
Dollars) on March 29, and 30, 1991. . .



The Master, the officers and members of the crew of the "M/T
Tabangao" were on board the vessel with the Accused and their
cohorts from March 2, 1991 up to April 10, 1991 or for more than
one (1) month. There can be no scintilla of doubt in the mind of the
Court that the officers and crew of the vessel could and did see and
identify the seajackers and their leader. In fact, immediately after
the Accused were taken into custody by the operatives of the
National Bureau of Investigation, Benjamin Suyo, Norberto Senosa,
Christian Torralba and Isaias Wervas executed their "Joint Affidavit"
(Exhibit "B") and pointed to and identified the said Accused as
some of the pirates.



Indeed, when they testified before this Court on their defense, the
three (3) Accused admitted to the Court that they, in fact, boarded
the said vessel in the evening of March 2, 1991 and remained on
board when the vessel sailed to its destination, which turned out to
be off the port of Singapore.



Crim 2

(pp. 106-112, Rollo.)

We also agree with the trial court's finding that accused-appellants'

defense of denial is not supported by any hard evidence but their bare
testimony. Greater weight is given to the categorical identification of the
accused by the prosecution witnesses than to the accused's plain denial of
participation in the commission of the crime (People v. Baccay, 284 SCRA
296 [1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr.
narrated a patently desperate tale that they were hired by three complete
strangers (allegedly Captain Edilberto Liboon, Second Mate Christian
Torralba, and their companion) while said accused-appellants were
conversing with one another along the seashore at Aplaya, Balibago,
Calatagan, Batangas, to work on board the "M/T Tabangao" which was then
anchored off-shore. And readily, said accused-appellants agreed to work as
cooks and handymen for an indefinite period of time without even saying
goodbye to their families, without even knowing their destination or the
details of their voyage, without the personal effects needed for a long
voyage at sea. Such evidence is incredible and clearly not in accord with
human experience. As pointed out by the trial court, it is incredible that
Captain Liboon, Second Mate Torralba, and their companion "had to leave
the vessel at 9:30 o'clock in the evening and venture in a completely
unfamiliar place merely to recruit five (5) cooks or handymen (p. 113,
Anent accused-appellant Changco's defense of denial with the alibi that on
May 14 and 17, he was at his place of work and that on April 10, 1991, he
was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is
fundamentally and inherently a weak defense, much more so when
uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997])
considering that it is easy to fabricate and concoct, and difficult to
disprove. Accused-appellant must adduce clear and convincing evidence
that, at about midnight on April 10, 1991, it was physically impossible for
him to have been in Calatagan, Batangas. Changco not only failed to do
this, he was likewise unable to prove that he was in his place of work on
the dates aforestated.
It is doctrinal that the trial court's evaluation of the credibility of a
testimony is accorded the highest respect, for trial courts have an
untrammeled opportunity to observe directly the demeanor of witnesses
and, thus, to determine whether a certain witness is telling the truth
(People v. Obello, 284 SCRA 79 [1998]).

We likewise uphold the trial court's finding of conspiracy. A conspiracy

exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it (Article 8, Revised Penal
Code). To be a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not even know
the exact part to be performed by the others in the execution of the
conspiracy. As noted by the trial court, there are times when conspirators
are assigned separate and different tasks which may appear unrelated to
one another, but in fact, constitute a whole and collective effort to achieve
a common criminal design.
We affirm the trial court's finding that Emilio Changco, accused-appellants
Tulin, Loyola, and Infante, Jr. and others, were the ones assigned to attack
and seize the "M/T Tabangao" off Lubang, Mindoro, while accused-appellant
Cecilio Changco was to fetch the master and the members of the crew
from the shoreline of Calatagan, Batangas after the transfer, and bring
them to Imus, Cavite, and to provide the crew and the officers of the vessel
with money for their fare and food provisions on their way home. These
acts had to be well-coordinated. Accused-appellant Cecilio Changco need
not be present at the time of the attack and seizure of "M/T Tabangao"
since he performed his task in view of an objective common to all other
Of notable importance is the connection of accused-appellants to one
another. Accused-appellant Cecilio Changco is the younger brother of
Emilio Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin
Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother
in said corporation. Their residences are approximately six or seven
kilometers away from each other. Their families are close. Accusedappellant Tulin, on the other hand, has known Cecilio since their parents
were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accusedappellant Loyola's wife is a relative of the Changco brothers by affinity.
Besides, Loyola and Emilio Changco had both been accused in a seajacking
case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off
Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was
convicted of the crime while Loyola at that time remained at large.
As for accused-appellant Hiong, he ratiocinates that he can no longer be
convicted of piracy in Philippine waters as defined and penalized in
Sections 2[d] and 3[a], respectively of Presidential Decree No. 532 because
Republic Act No. 7659 (effective January 1, 1994), which amended Article
122 of the Revised Penal Code, has impliedly superseded Presidential
Decree No. 532. He reasons out that Presidential Decree No. 532 has been
rendered "superfluous or duplicitous" because both Article 122 of the
Revised Penal Code, as amended, and Presidential Decree No. 532 punish


Crim 2
piracy committed in Philippine waters. He maintains that in order to
reconcile the two laws, the word "any person" mentioned in Section 1 [d] of
Presidential Decree No. 532 must be omitted such that Presidential Decree
No. 532 shall only apply to offenders who are members of the complement
or to passengers of the vessel, whereas Republic Act No. 7659 shall apply
to offenders who are neither members of the complement or passengers of
the vessel, hence, excluding him from the coverage of the law.
Article 122 of the Revised Penal Code, used to provide:
ARTICLE 122. Piracy in general and mutiny on the high seas. The
penalty of reclusion temporal shall be inflicted upon any person
who, on the high seas, shall attack or seize a vessel or, not being a
member of its complement nor a passenger, shall seize the whole
or part of the cargo of said vessel, its equipment, or personal
belongings of its complement or passengers.
Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:
ARTICLE 122. Piracy in general and mutiny on the high seas or in
Philippine waters. The penalty ofreclusion perpetua shall be
inflicted upon any person who, on the high seas, or in Philippine
waters, shall attack or seize a vessel or, not being a member of its
complement nor a passenger, shall seize the whole or part of the
cargo of said vessel, its equipment, or personal belongings of its
complement or passengers.
On the other hand, Section 2 of Presidential Decree No. 532 provides:
SECTION 2. Definition of Terms. The following shall mean and be
understood, as follows:
d. Piracy. Any attack upon or seizure of any vessel or the taking
away of the whole or part thereof or its cargo, equipment, or the
personal belongings of its complement or passengers, irrespective
of the value thereof, by means of violence against or intimidation
of persons or force upon things, committed by any person,
including a passenger or member of the complement of said vessel
in Philippine waters, shall be considered as piracy. The offenders
shall be considered as pirates and punished as hereinafter
provided (Italics supplied).

To summarize, Article 122 of the Revised Penal Code, before its
amendment, provided that piracy must be committed on the high seas by
any person not a member of its complement nor a passenger thereof. Upon
its amendment by Republic Act No. 7659, the coverage of the pertinent
provision was widened to include offenses committed "in Philippine
waters." On the other hand, under Presidential Decree No. 532 (issued in
1974), the coverage of the law on piracy embraces any person including "a
passenger or member of the complement of said vessel in Philippine
waters." Hence, passenger or not, a member of the complement or not,
any person is covered by the law.
Republic Act No. 7659 neither superseded nor amended the provisions on
piracy under Presidential Decree No. 532. There is no contradiction
between the two laws. There is likewise no ambiguity and hence, there is
no need to construe or interpret the law. All the presidential decree did was
to widen the coverage of the law, in keeping with the intent to protect the
citizenry as well as neighboring states from crimes against the law of
nations. As expressed in one of the "whereas" clauses of Presidential
Decree No. 532, piracy is "among the highest forms of lawlessness
condemned by the penal statutes of all countries." For this reason, piracy
under the Article 122, as amended, and piracy under Presidential Decree
No. 532 exist harmoniously as separate laws.
As regards the contention that the trial court did not acquire jurisdiction
over the person of accused-appellant Hiong since the crime was committed
outside Philippine waters, suffice it to state that unquestionably, the attack
on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates)
and its cargo were committed in Philippine waters, although the captive
vessel was later brought by the pirates to Singapore where its cargo was
off-loaded, transferred, and sold. And such transfer was done under
accused-appellant Hiong's direct supervision. Although Presidential Decree
No. 532 requires that the attack and seizure of the vessel and its cargo be
committed in Philippine waters, the disposition by the pirates of the vessel
and its cargo is still deemed part of the act of piracy, hence, the same
need not be committed in Philippine waters.
Moreover, piracy falls under Title One of Book Two of the Revised Penal
Code. As such, it is an exception to the rule on territoriality in criminal law.
The same principle applies even if Hiong, in the instant case, were
charged, not with a violation of qualified piracy under the penal code but
under a special law, Presidential Decree No. 532 which penalizes piracy in
Philippine waters. Verily, Presidential Decree No. 532 should be applied
with more force here since its purpose is precisely to discourage and
prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761
[1997]). It is likewise, well-settled that regardless of the law penalizing the


Crim 2


same, piracy is a reprehensible crime against the whole world (People v.

Lol-lo, 43 Phil. 19 [1922]).

270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People
v. Pastores, 40 SCRA 498 [1971]).

However, does this constitute a violation of accused-appellant's

constitutional right to be informed of the nature and cause of the
accusation against him on the ground that he was convicted as an
accomplice under Section 4 of Presidential Decree No. 532 even though he
was charged as a principal by direct participation under Section 2 of said

Emphasis must also be placed on the last paragraph of Section 4 of

Presidential Decree No. 532 which presumes that any person who does any
of the acts provided in said section has performed them knowingly, unless
the contrary is proven. In the case at bar, accused-appellant Hiong had
failed to overcome the legal presumption that he knowingly abetted or
aided in the commission of piracy, received property taken by such pirates
and derived benefit therefrom.

The trial court found that there was insufficiency of evidence showing:
(a) that accused-appellant Hiong directly participated in the attack and
seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio
Changco and his group in the attack and seizure of "M/T Tabangao" and its
cargo; (c) and that his act was indispensable in the attack on and seizure of
"M/T Tabangao" and its cargo. Nevertheless, the trial court found that
accused-appellant Hiong's participation was indisputably one which aided
or abetted Emilio Changco and his band of pirates in the disposition of the
stolen cargo under Section 4 of Presidential Decree No. 532 which
SECTION 4. Aiding pirates or highway robbers/brigands or abetting
piracy or highway robbery brigandage. Any person who
knowingly and in any manner aids or protects pirates or highway
robbers/brigands, such as giving them information about the
movement of police or other peace officers of the government, or
acquires or receives property taken by such pirates or brigands or
in any manner derives any benefit therefrom; or any person who
directly or indirectly abets the commission of piracy or highway
robbery or brigandage, shall be considered as an accomplice of the
principal officers and be punished in accordance with Rules
prescribed by the Revised Penal Code.
It shall be presumed that any person who does any of the acts
provided in this Section has performed them knowingly, unless the
contrary is proven.
The ruling of the trial court is within well-settled jurisprudence that if there
is lack of complete evidence of conspiracy, the liability is that of an
accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]).
Any doubt as to the participation of an individual in the commission of the
crime is always resolved in favor of lesser responsibility (People v. Corbes,

The record discloses that accused-appellant Hiong aided the pirates in

disposing of the stolen cargo by personally directing its transfer from "M/T
Galilee" to "M/T Navi Pride". He profited therefrom by buying the hijacked
cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He
even tested the quality and verified the quantity of the petroleum
products, connived with Navi Marine Services personnel in falsifying the
General Declarations and Crew List to ensure that the illegal transfer went
through, undetected by Singapore Port Authorities, and supplied, the
pirates with food, beer, and other provisions for their maintenance while in
port (tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the General Declaration (Arrival and
Departure) and Crew List was accomplished and utilized by accusedappellant Hiong and Navi Marine Services personnel in the execution of
their scheme to avert detection by Singapore Port Authorities. Hence, had
accused-appellant Hiong not falsified said entries, the Singapore Port
Authorities could have easily discovered the illegal activities that took
place and this would have resulted in his arrest and prosecution in
Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to
"Navi Pride" could not have been effected.
We completely uphold the factual findings of the trial court showing in
detail accused-appellant Hiong's role in the disposition of the pirated goods
summarized as follows: that on March 27, 1991, Hiong with Captain Biddy
Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to
rendezvous with the "M/T Galilee"; that the firm submitted the crew list of
the vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the
name of Hiong; that the "General Declaration" (for departure) of the "Navi
Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH",
Record) falsely stated that the vessel was scheduled to depart at 2200 (10
o'clock in the evening), that there were no passengers on board, and the
purpose of the voyage was for "cargo operation" and that the vessel was to
unload and transfer 1,900 tons of cargo; that after the transfer of the fuel
from "M/T Galilee" with Emilio Changco a. k. a. Captain Bobby a. k. a.



Crim 2
Roberto Castillo at the helm, the surveyor prepared the "Quantity
Certificate" (Exhibit "11-C CSH, Record) stating that the cargo transferred
to the "Navi Pride" was 2,406 gross cubic meters; that although Hiong was
not the Master of the vessel, he affixed his signature on the "Certificate"
above the word "Master" (Exhibit "11-C-2 CSH", Record); that he then paid
P150,000.00 but did not require any receipt for the amount; that Emilio
Changco also did not issue one; and that in the requisite "General
Declaration" upon its arrival at Singapore on March 29, 1991, at 7 o'clock
in the evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to
falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on the
high seas during said voyage when in fact it acquired from the "M/T
Galilee" 2,000 metric tons of diesel oil. The second transfer transpired with
the same irregularities as discussed above. It was likewise supervised by
accused-appellant Cheong from his end while Emilio Changco supervised
the transfer from his end.
Accused-appellant Hiong maintains that he was merely following the orders
of his superiors and that he has no knowledge of the illegality of the source
of the cargo.
First and foremost, accused-appellant Hiong cannot deny knowledge of the
source and nature of the cargo since he himself received the same from
"M/T Tabangao". Second, considering that he is a highly educated mariner,
he should have avoided any participation in the cargo transfer given the
very suspicious circumstances under which it was acquired. He failed to
show a single piece of deed or bill of sale or even a purchase order or any
contract of sale for the purchase by the firm; he never bothered to ask for
and scrutinize the papers and documentation relative to the "M/T Galilee";
he did not even verify the identity of Captain Robert Castillo whom he met
for the first time nor did he check the source of the cargo; he knew that the
transfer took place 66 nautical miles off Singapore in the dead of the night
which a marine vessel of his firm did not ordinarily do; it was also the first
time Navi Marine transacted with Paul Gan involving a large sum of money
without any receipt issued therefor; he was not even aware if Paul Gan was
a Singaporean national and thus safe to deal with. It should also be noted
that the value of the cargo was P40,426,793.87 or roughly more than
US$1,000,000.00 (computed at P30.00 to $1, the exchange rate at that
time). Manifestly, the cargo was sold for less than one-half of its value.
Accused-appellant Hiong should have been aware of this irregularity.
Nobody in his right mind would go to far away Singapore, spend much time
and money for transportation only to sell at the aforestated price if it
were legitimate sale involved. This, in addition to the act of falsifying
records, clearly shows that accused-appellant Hiong was well aware that
the cargo that his firm was acquiring was purloined.

Lastly, it cannot be correctly said that accused-appellant was "merely

following the orders of his superiors." An individual is justified in
performing an act in obedience to an order issued by a superior if such
order, is for some lawful purpose and that the means used by the
subordinate to carry out said order is lawful (Reyes, Revised Penal Code,
Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior
Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of
international law. Such violation was committed on board a Philippineoperated vessel. Moreover, the means used by Hiong in carrying out said
order was equally unlawful. He misled port and immigration authorities,
falsified records, using a mere clerk, Frankie Loh, to consummate said acts.
During the trial, Hiong presented himself, and the trial court was
convinced, that he was an intelligent and articulate Port Captain. These
circumstances show that he must have realized the nature and the
implications of the order of Chua Kim Leng Timothy. Thereafter, he could
have refused to follow orders to conclude the deal and to effect the
transfer of the cargo to the "Navi Pride." He did not do so, for which reason,
he must now suffer the consequences of his actions.
WHEREFORE, finding the conviction of accused-appellants justified by the
evidence on record, the Court hereby AFFIRMS the judgment of the trial
court in toto.

G.R. No. 110097 December 22, 1997

PHILIPPINES, plaintiff-appellee, vs.
ASTORGA, accused-appellant.




Crim 2
Actual detention or "locking up" is the primary element of kidnapping. If
the evidence does not adequately prove this element, the accused cannot
be held liable for kidnapping. In the present case, the prosecution merely
proved that appellant forcibly dragged the victim toward a place only he
knew. There being no actual detention or confinement, the appellant may
be convicted only of grave coercion.
The Case
The foregoing principle is used by this Court in resolving the appeal of
Arnulfo Astorga challenging the March 31, 1993 Decision 1 of the Regional
Trial Court of Tagum, Davao convicting him of kidnapping.
In an Information 2 dated March 24, 1992 and docketed as Criminal Case
No. 8243, Appellant Arnulfo Astorga was charged with violation of Article
267, paragraph 4 of the Revised Penal Code, allegedly committed as
That on or about December 29, 1991 in the Municipality of Tagum,
Province of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with deliberate intent
and by means of force, did then and there willfully, unlawfully and
feloniously kidnap Yvonne Traya, a minor, 8 years of age, thereby
depriving her of her liberty against her will, to the damage and
prejudice of said offended party.
Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his
counsel, 3 pleaded not guilty to the charge. Trial on the merits ensued. The
dispositive portion of the assailed Decision 4 reads as follows: 5
WHEREFORE, premises considered, the guilt of accused ARNULFO
ASTORGA having been proven beyond reasonable doubt, pursuant
to Article 267 paragraph 4 of the Revised Penal Code, [he] is
hereby sentenced toReclusion Perpetua to be served at the
National Penitentiary, [Muntinlupa].
This appeal was filed directly with this Court in view of the penalty
imposed. 6

The evidence for the prosecution was narrated in the Decision of the trial
court, as follows: 7
Prosecution witnesses extant from their testimonies categorically
assert that around 6:30 P.M. children of neighbors were near the
store of the grandparents of Yvonne Traya.
Incidentally, there was a brown out that evening hence candle was
used. The daughter and nephew of her aunt Bebeth were
quarelling [sic] about the possession of a flashlight until the glass
got lost. Accused or "Boy" Astorga, went near and asked her
daughter Jane what happened. Glenda or Bebeth grabbed her baby
and went home.
Accused told Yvonne to go with him to buy candy. She did not
answer and accused immediately grabbed and hold [sic] her hand.
Accused placed his hand on her shoulder and covered his [sic]
Yvonne was only eight (8) years old on 29 December 1991 when
she was brought by the accused allegedly to buy candy. Some
stores were closed; others were opened. Accused never went
inside the store to buy candy. Instead she [sic] held and dragged
Yvonne until they went inside the compound of Maco Elementary
School. They were walking inside the perimeter fence, [while the
accused was] holding closely the child. Later, there being no
person around the gate, accused brought her out to the highway
and walked towards the direction of Tagum.
Yvonne stays with her grandparents and so with her parents at
Sitio Binuangan, Maco. She asked him where they were going and
accused answered that they were going home. She told him that
they were already on the opposite direction because her
grandparent's house is at Binuangan, while their route was going
towards Tagum. Indeed, it was an opposite direction.
Notwithstanding the assertion of Yvonne that they were on the
wrong direction, accused placed his hands on her shoulder and
dragged her. She cried and protested that she must go home.
Accused did not heed her plea and while she was forced to walk
she continued crying.

The Facts
Evidence for the Prosecution

While accused and Yvonne were walking in the situation as

described, somewhere near the Luponlupon bridge they met some
group of men. Having met on their opposite direction, the two,



Crim 2
were noticed by the group of youngsters. The group were bound to
Maco Catholic Church to see a drama. Having met the two and as
noticed by the group accused keep [sic] on looking back at them.
The group were suspicious about the man who was bringing a
child. The group decided to follow them. Accused hurriedly walked
fast with Yvonne, and to prevent from being overtaken, he carried
the victim and ran. They were chased. After a distance of half a
kilometer they were overtaken.
Edwin Fabila declared that Jonathan, one of his companions with
others in chasing, asked the accused where they were bound. He
answered towards Binuangan. The group noticed something
suspicious because their destination was already towards Tagum
which is an opposite direction to Binuangan.
When asked who is the child, accused answered Traya. Jonathan
one of those who chased knew the family. He got from the accused
Yvonne who showed some resistance. Nevertheless, the group
brought her home at Binuangan. Likewise, accused was also
brought by them to Yvonne's home. The house of accused and
Yvonne were five (5) meters away. Accused wanted to talk to the
parents of the victim, but he was driven by her aunt and adviced
[sic] to leave otherwise he will be stabbed by Yvonne's father. He
left and never talked with the family.
Evidence for the Defense
The facts as viewed by the defense are presented in the Appellant's
Brief, 8 dated December 10, 1993:
The defense consisted of the testimonies of Arbeth Nalcot and the
accused-appellant himself.
Arbeth Nalcot, a resident of Tagum, Davao, testified tht [sic] in the
afternoon of December 29, 1991, she was at the Municipal Hall of
Maco, Davao. She saw Astorga with two (2) companions. They were
drinking Red Horse and were already drunk. When they finished
drinking, she went with Astorga to the latter's house. (TSN, pp. 7-8
and 18, March 23, 1993). The house of Astorga is about 5 meters
away from the house of the complainant[.] Yvonne came and asked
money from the accused to buy candy. The two went together and
she was left behind. She told them to hurry up. When they failed to
return, she looked for them, but because it was already dark. She

did not find them. She went back to the house of the accused.
(Ibid., pp. 10-11).
Arnulfo Astorga, a resident of Maco, Davao and a gold panner
testified that "at around 1:00 P.M. of December 29, 1991, he
arrived at Maco from Tagum. Upon arrival his two friends, Vicvic
and Anding were already at his home. They decided to drink, hence
they proceeded to Adecor Cottage and drank two gallons of Tuba.
At around 2:00 P.M., they were at the market place and drink beer
grande. At 5:00 P.M. on the same day, the three proceeded near
the municipal hall and with some persons, they again continued
their drinking spree taking up Red Horse wine". (Decision, p. 3).
At about 6:00 P.M., he was already drunk and he went home.
Yvonne approached him and asked him money to buy candy. He
told her that they will buy. They were not able to buy because the
two stores where they went were already closed. (TSN, pp. 12 and
13, March 24, 1993). He took her for a stroll for his drunkeness [sic]
to subside. They walked inside the school premises which was
about 20 meters away from the second store. They went out of the
school compound going towards Lupon-lupon because due to his
drunkneness [sic], he thought it was the way towards their house.
(Ibid, pp. 14-15) They reached Lupon-lupon bridge, crossed it twice
thinking that it was the bridge near the municipal hall. After
reaching Purok, they met several persons, he was asked were (sic)
they were heading, and he answered to Tagumpay, but he was told
that they [sic] way was already going to Tagum. He requested
those persons to guide them to Tagumpay. They asked him who
was the child he was carrying. He answered that it was Traya's
child, (Ibid, pp. 16-17). He was carrying the child because he was
already crying she already wanted to go home. The group of
persons, men and women, guided them. Yvonne was being held by
the women. They arrived at Yvonne's house. He talked to the
auntie of the child and told her that he would converse with her but
he was advised to go away because the father of Yvonne might
hack him. So he went home. (Ibid, pp. 18-19)
The Trial Court's Ruling
The trial court justified its finding of guilt with the following discussion: 9
Accused insisted [that] he was already drunk hence when he took
Yvonne to buy candy, he strolled with her so that his drunkenness
be subsided.



Crim 2
All these defense version was rebutted by Yvonne when she
categorically declared that she did not smell liquor on the accused.
His defense of intoxication has no leg to stand [on].
Consider these facts.
Never did he present Vicvic and Anding to corroborate that he was
intoxicated that afternoon and at dusk because of their drinking
spree from 1:00 P.M. until 5:00 P.M.

On rebuttal, Yvonne denied that she asked money from accused to

buy candy. She also denied as testified by defense witness Arbeth
Nalcot that she went to the house of the accused on 29 December
1991 or on any other dates to ask money from Astorga for candy.
Defense evidence are [sic] punctured with unbelievability in his off
tangent and incredible theory of drunkardness. His alleged being
lost in the direction of Binuangan in spite of Yvonne's insistence
and that of the person they met that he was on the wrong way
considering that there are no criss crossing roads except the
highway is preposterous.

He did not rebut the testimonies of Fabila that when they noticed
his actions suspicious bringing with him a child, he walked fast
dragging Yvonne. When he noticed that the group of youngsters
were chasing him, he carried Yvonne and ran until they covered a
distance of half a kilometer in chasing them, until they had
overtaken him.

The Issues

If he was that intoxicated, being under stupor and weakened by

liquor, he could not ran that fast carrying Yvonne for half a

The trial court erred in giving credence to the testimonies of the

prosecution's witnesses which were replete with inconsistencies
and contradictions.

Moreover, Yvonne categorically in straight forward testimony

asserted that she did not smell liquor on the accused.
Accused, naivety [sic], that because of his intoxication, he got lost
and was not able to proceed with Yvonne to Binuangan was a
shallow afterthought.

Appellant imputes the following errors to the trial court: 10


The trial court erred in convicting the appellant despite the fact
that Yvonne Traya was not detained, locked-up or deprived of her

It must be recalled that Yvonne told him they were already going at
opposite direction from home. Instead they were heeding towards
Tagum. Accused did not change course.
xxx xxx xxx
Again, not only force was employed in having Yvonne as captive by
dragging, slapping her mouth and was holding her tight, but
accused also used psychological means of scaring her about a red
eyed ghost.
Through this means and efforts, Yvonne was deprived of her liberty
and was by force prevented to go home to her parents.

The trial court erred in convicting the appellant despite the fact
that appellant had no motive to kidnap Yvonne Traya.
In the main, appellant challenges the credibility of the prosecution
witnesses and the legal characterization of the acts imputed to
The Court's Ruling
The appeal is partly meritorious. Appellant should be convicted
only of grave coercion, not kidnapping.



Crim 2
First Issue: Credibility of Prosecution Witnesses
Appellant contends that the testimonies of the prosecution
witnesses are not worthy of credence because they were
inconsistent and improbable. He cites the following:
Glenda Chavez testified that she was present when the
accused told Yvonne that they will buy candy. She sensed
that the accused was drunk. (TSN, pp. 10-11, March 10,
1993). These testimonies were contradicted by Yvonne
Traya when she declared that Glenda Chavez had already
went [sic] inside their house when [the] accused told her
that they will buy candy (TSN, pp. 10, March 16, 1993). She
testified that she did not smell liquor on the accused.
(Decision, pp. 3-4)
Edwin Fabila testified that their group was able to overtake
the accused at a distance of 2 fathoms and they [sic] him
about 15 to 20 meters (TSN, p. 35, March 10, 1993) Arnel
Fabila, on the other hand, testified that they overtook the
accused after chasing him at a distance of half kilometer
(TSN, p. 10, March 11, 1993).
Yvonne Traya testified that the accused could not ran fast
carrying her because she was heavy. (TSN, p. 19, March 16,
1993). However, Arnel Fabila declared that they were able
to overtake the accused only after chasing him at a
distance of half kilometer (TSN, p. 10, March 11, 1993)
meaning accused was running fast. 11
We hold, however, that inconsistencies in the testimonies of
witnesses concerning minor details and collateral matters, like the
examples cited by appellant, do not affect the substance, veracity
or weight of their declarations. These inconsistencies reinforce,
rather than weaken, their credibility, for different witnesses of
startling events usually perceive things differently. 12 Indeed, the
testimonies of the prosecution witnesses cannot be expected to be
uniform to the last detail.

not have the same experiences or level of maturity; hence, their

perceptions of events differ. More important, whether the accused
was drunk or not is an insignificant detail that does not
substantially affect the testimonies of these witnesses.
Further, the discrepancy in the witnesses' estimate of the distance
covered by the men who chased appellant does not render their
testimonies incredible. 15 Quite the contrary, such discrepancy
shows their candor and sincerity, demonstrating that their
testimonies were unrehearsed. 16 Yvonne testified that when
appellant noticed the group of men following them, he carried her
and ran. Yvonne's testimony is in accord with that of Arnel Fabila
a member of the group who chased appellant that they were
able to overtake appellant after chasing him half a kilometer. 17
Appellant's challenge to the credibility of the prosecution account
is also premised on the alleged failure of the trial court to consider
points: 18
a) that the alleged victim admitted that she and the
accused casually moved around the school premises,
as if they were strolling; That when they were already
in the highway, they were also walking openly and
casually until they were met by a group of
Edwin Fabila, one of the prosecution's witnesses,
corroborated the fact that the two were walking
casually along the highway when he first saw them;
b) That it is highly incredible that accused and the alleged
victim will not be seen or noticed by the people
travelling or those persons residing along the highway
if it was true that the accused was dragging her and
she was continuously crying from her residence up to a
distance of more than one kilometer;

The testimony of Glenda Chavez that the accused was drunk at

that time allegedly contradicted Yvonne's statement that the
accused did not smell of liquor. This does not detract from the
credibility of either witness. Yvonne, then an eight-year-old
child, 13 and her Aunt Glenda, then twenty-seven years old, 14 do

That the accused and the alleged victim were travelling

at a very slow pace; a distance of barely a kilometer for
a period of more than two hours;

d) That the accused was very drunk, having been drinking

different kinds of intoxicating liquors from 1:00 p.m. to



Crim 2
5:00 p.m., causing him to be confused on which way
they should take in going home.
e) That the accused was not hurt by the group of
youngsters who allegedly rescued the child, nor was
immediately brought to the municipal hall which was
just near the house of the victim for the filing of the
necessary charge; this [sic] actuations only confirm the
fact that the accused merely sought their help in
guiding them home, and

That it took more than one week for the complainant

and her parents to file the case at the Fiscal's Office.

We cannot sustain these contentions. The charge is not belied by

the one-week delay in the filing of the complaint. It has been held
that delay or vacillation in making a criminal accusation does not
necessarily weaken the credibility of a witness where such delay is
satisfactorily explained. 19 In the present case, one week was
reasonable, considering that the victim was a resident of
Binuangan and that the case was filed in Tagum, Davao.
Furthermore, the group whom appellant met did not hurt or bring
him to the municipal hall, because they deemed it more urgent at
the time to rescue Yvonne and to bring her home, which they
actually did. 20 There is no settled rule on how a group of young
men should react upon seeing a young girl snatched by an older
man. Verily, violence is not the only normal reaction of young men
who see a girl being forcibly taken.
Appellant's claim that he and Yvonne were merely strolling and
walking casually does not negate the fact that Yvonne was
deprived of her will. As noted by the trial court, appellant used
her. 21 Despite her young age, Yvonne was able to clearly recount
the events that transpired on that fateful night.
Moreover, there is no merit in the argument that the people
travelling or living along the highway should have noticed
appellant and Yvonne. The fact is that a group of men actually
noticed and ultimately chased them.

All in all, appellant utterly fails to justify a departure from the long
settled rule that the trial court's assessment of the credibility of
witnesses should be accorded great respect on appeal. 22
Second Issue: No Motive to "Kidnap"
Petitioner contends that "[t]here was no evidence presented to
prove why the accused should kidnap Yvonne Traya." He submits
that "the prosecution had failed to prove [any] motive to support
the alleged kidnapping incident, thus, making the theory of the
defense more credible and believable." 23
The contention is insignificant. Motive is not an element of the
crime. Furthermore, motive becomes material only when the
evidence is circumstantial or inconclusive, and there is some doubt
on whether a crime has been committed or whether the accused
has committed it. Indeed, motive is totally irrelevant when ample
direct evidence sustains the culpability of the accused beyond
reasonable doubt. 24 In this case, the identity of appellant is not in
question. He himself admitted having taken Yvonne to Maco
Central Elementary School.
Third Issue: Kidnapping or Coercion?
Appellant contends that the prosecution failed to prove one
essential element of kidnapping the fact of detention or the
deprivation of liberty. The solicitor general counters that
deprivation of liberty is not limited to imprisoning or placing the
victim in an enclosure. Citing People vs. Crisostomo, 25 he argues:
(T)he act proven in the record constitutes (kidnapping). It is
no argument against this conclusion that the accused
deprived the offended party of her liberty without placing
her in an inclosure; because illegal detention, as defined
and punished in our Code, may consist not only in
imprisoning a person but also in detaining her or depriving
her in any manner of her liberty. 26
We agree with appellant's contention this time.
Under Article 267 of the Revised Penal Code, 27 the elements of
kidnapping are as follows:



Crim 2

That the offender is a private individual.

Q And after that?


That he kidnaps or detains another, or in any other

manner deprives the latter of his liberty.

A And while I was not answering the question he

immediately grabbed me.


That the act of detention or kidnapping must be illegal.


That in the commission of the offense, any of the

following circumstances is present:

Q And after that, after he held your hand, what did he do



That the kidnapping or detention lasts for more than

five (5) days; or

A He placed his hands on my shoulder and also covering

[sic] my mouth.


That it committed simulating public authority; or


That any serious physical injuries are inflicted upon the

person kidnapped or detained or threats to kill him are
made; or

Q And after that what did he do next?

That the person kidnapped or detained is a minor,

female, or a public officer.

Q What school did Boy Astorga bring you? What is the

name of the school?


The Spanish version of Article 267 of the Revised Penal Code uses
the terms "lockup" (encerrar) rather than "kidnap" (secuestrar or
raptar). Lockup is included in the broader term of "detention,"
which refers not only to the placing of a person in an enclosure
which he cannot leave, but also to any other deprivation of liberty
which does not necessarily involve locking up. 28 Likewise, the
Revised Penal Code was originally approved and enacted in
Spanish. Consequently, the Spanish text is controlling in cases of
conflict with the English version, as provided in Section 15 of the
Revised Administrative Code. 29
A review of the events as narrated by the prosecution witnesses
ineluctably shows the absence of "locking up." Victim Yvonne Traya
testified: 30
Q And after that what happened next?
A When Auntie Bebeth went inside her house she was
already bringing her child and bringing with her candle.
And Arnulfo Astorga told me that we will buy candy, sir.

xxx xxx xxx

xxx xxx xxx

A He brought me to the school.

A Maco Central Elementary School.

Q How far is Maco Central Elementary School from your
A A little bit near.
Q When Boy Astorga brought you to school, was it dark?
A Yes, sir.
Q Exactly where in Maco Elementary School did Boy
Astorga bring you?
A Inside the gate, sir.
Q And once inside the gate what did he do to you?



Crim 2
A We were going around the school?

Q Do you know the place where it was going? What is that


xxx xxx xxx

A On the road going to Tagum.
Q Do you know why you were going around the school?
Q Now, what, about your house, where is it going?
A Yes, sir.
A To Binuangan.
Q Why, what did he do?
A We were going around and when he saw that there is no
person in the gate we passed at that gate.
Q And where did he go after passing that gate?
A Towards Lupon-lupon, sir.
xxx xxx xxx

Q And so when you . . . what did he do next when you said

that is not the place going to your house?
A We continued walking and he also placed his hands on
my shoulder and dragged me, sir.
Q What about you, what did you do when he was dragging
A I was crying, sir.

Q What about you, did you talk to him?

A I asked him where we were going and he told me that we
are going home and I told him that this is not the way to
our house, and we did not pass this way. (Witness
gesturing a certain direction).

Q Did you say any word to him when you were crying?
A Yes, I told him that we are going home.
Q And what did Boy Astorga say?

Q And so when you said that that is not the way, when you
said that is not the way because our house is towards
Binuangan. . .

A He told me that we will be going home, and told me not

to make any noise because if I will make any noise we will
be lost on our way.

By the way, you said you were going to Lupon-lupon, do

you know to what direction is going to Lupon-lupon, to
what place is Lupon-lupon going to?

Q And so, what did you do?

A Yes, sir.

Q And after that, what happened?

Q Where?

A We continued walking and we met a person and he asked

Boy Astorga where we are going, sir.

A I continued crying, sir.

A Going to my place.
Q What did that man ask Boy Astorga?



Crim 2
A The man asked Boy Astorga where are you going, and
Boy Astorga answered, to Binuangan, but the man
continued to say that this way is going to Tagum and not to
Binuangan any more.

A He was dragging me and I was crying when he was

dragging me.
Q While you were being dragged did you make any plea to

Q What else did the man ask, if any?

A Yes, I told him that I will go home.
A I further said that we will already leave, and we will be
the ones to go to Binuangan, and after that, Boy Astorga
put me down because he urinated. So, at that instance, I
ran, but, after he urinated, he already took hold of me not
to run any more because there is a ghost.

Q And what did he say?

A He said that we will go home but I know [sic] that place
we are [sic] heading to is [sic] not a way to our home but it
is [sic] the opposite.

Q When you said you ran away after Boy Astorga left you
when he urinated, where did you run?

Q So, what happened next?

A Towards Binuangan, sir.

A He continued dragging me and after that we met plenty

of persons and I shouted for help and at that instance, he
slapped my mouth and after a few steps he already carried

Q Towards the direction of your house?

A Yes, sir.
xxx xxx xxx
Q And you were overtaken again by Boy Astorga?
A Yes, sir.
Q What did he do to you when you were overtaken by Boy

A He continued walking and I also continued crying and I

told him that I want to go home and he told me that we are
heading towards home, but I told him that the way we are
going to is not the way to our house.
Q By the way, when you shouted [for] help, was it loud?

A He took hold of me again and he told me, he threatened

me that there is [sic] a red eyes but I answered him that is
[sic] not a red eyes of the ghost but that is a light coming
from the vehicle.
Q Now, what happened next?

A Yes, sir.
Q So, what happened next?
A He continued running and he stopped several vehicles
but they did not stop, so, we just continued walking.

A He placed a necklace on me, sir.

Q After that, what happened next?
xxx xxx xxx



Crim 2
A He moved closer to the banana plants. He looked back
and he saw that persons were already chasing him and
after that he carried me and ran.
From the foregoing, it is clear that the appellant and the victim
were constantly on the move. They went to Maco Elementary
School and strolled on the school grounds. When nobody was at
the Luponlupon bridge, appellant took the victim to the highway
leading to Tagum, Davao. At that time, Yvonne pleaded with
appellant that she really wanted to go home to Binuangan, but
appellant ignored her pleas and continued walking her toward the
wrong direction. Later on, the group of Witness Arnel Fabila spotted
them. Appellant Astorga carried the victim and ran, but Fabila's
group chased and caught up with them.
This narration does not adequately establish actual confinement or
restraint of the victim, which is the primary element of
kidnapping. 31 Appellant's apparent intention was to take Yvonne
against her will towards the direction of Tagum. Appellant's plan did
not materialize, however, because Fabila's group chanced upon
them. The evidence does not show that appellant wanted to detain
Yvonne; much less, that he actually detained her. Appellant's
forcible dragging of Yvonne to a place only he knew cannot be said
to be an actual confinement or restriction on the person of Yvonne.
There was no "lockup." Accordingly, appellant cannot be convicted
of kidnapping under Article 267 of the Revised Penal Code.
Rather, the felony committed in this case is grave coercion under
Article 286 of the same code. Grave coercion or coaccion grave has
three elements: (a) that any person is prevented by another from
doing something not prohibited by law, or compelled to do
something against his or her will, be it right or wrong; (b) that the
prevention or compulsion is effected by violence, either by material
force or such a display of it as would produce intimidation and,
consequently, control over the will of the offended party; and (c)
that the person who restrains the will and liberty of another has no
right to do so or, in other words, that the restraint is not made
under authority of a law or in the exercise of any lawful
right. 32 When appellant forcibly dragged and slapped Yvonne, he
took away her right to go home to Binuangan. Appellant presented
no justification for preventing Yvonne from going home, and we
cannot find any.
The present case should be distinguished from People
vs. Rosemarie de la Cruz. 33 Here, Appellant Astorga tricked Yvonne

to go with him by telling her that they were going to buy candy.
When Yvonne recognized the deception, she demanded that she be
brought home, but appellant refused and instead dragged her
toward the opposite direction against her will. While it is unclear
whether Appellant Astorga intended to detain or "lock up" Yvonne,
there is no question that he forced her to go with him against her
will. In Rosemarie de la Cruz, Victim Whiazel voluntarily went with
accused. Furthermore, the accused in that case failed to
consummate the crime of kidnapping because of the timely
intervention of the victim's neighbor. Thus, the Court held in that
case: 34
In a prosecution for kidnapping, the intent of the accused
to deprive the victim of the latter's liberty, in any manner,
needs to be established by indubitable proof (People vs.
Puno, 219 SCRA 85 [1993]). The acts held by the trial court,
and maintained by the People, as consummating the crime
of kidnapping in this case are those when accusedappellant held the victim's hand and refused to let go when
the victim asked to go over to her neighbor, who by then
already saw what was happening. This happened for only a
very brief span of time and the evidentiary record shows
that there were a good number of people present at that
time, that a guard was stationed at the gate, and that
there was at least a teacher nearby. The child could have
just as easily shouted for help. While it does not take much
to scare the wits out of a small child like Whiazel, under the
attendant circumstances, we cannot say with certainty that
she was indeed deprived of her liberty. It must further be
noted that up to that brief moment when Cecilia saw them,
and the child asked to be let go, the victim had gone with
accused-appellant voluntarily. Without any further act
reinforcing the inference that the victim may have been
denied her liberty, even taking cognizance of her minority,
the Court hesitates to find that kidnapping in the case at
bar was consummated. While it is a well-entrenched rule
that factual findings of trial courts, especially when they
concern the appreciation of testimony of witnesses, are
accorded great respect, by exception, when the judgment
is based on a misapprehension of facts, as we perceive in
the case at bar, the Court may choose to substitute its own
findings (People vs. Padua, 215 SCRA 266 [1992]).
The Information, dated March 24, 1992, filed against Astorga
contains sufficient allegations constituting grave coercion, the



Crim 2
elements of which were sufficiently proved by the prosecution.
Hence, a conviction for said crime is appropriate under Section 4,
Rule 120 of the 1988 Rules on Criminal Procedure:
Sec. 4. Judgment in case of variance between allegation
and proof When there is variance between the offense
charged in the complaint or information, and that proved or
established by the evidence, and the offenses as charged
is included in or necessarily includes the offense proved,
the accused shall be convicted of the offense proved
included in that which is charged, or of the offense charged
included in that which is proved.
At the time the felony was committed on December 29, 1991, the
penalty imposed by law for grave coercion was arresto mayor and
a fine not exceeding five hundred pesos. 35 The Indeterminate
Sentence Law does not apply here because the maximum penalty
does not exceed one year. 36 However, appellant has been
imprisoned for more than six (6) months. He has more than served
the penalty imposable for such an offense. 37
WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant
is CONVICTED only of grave coercion and is sentenced to six (6)
months of arresto mayor. Unless he is being detained for any other
valid cause, his IMMEDIATE RELEASE is herewith ordered,
considering that he has more than served the maximum penalty
imposable upon him. That director of prisons is DIRECTED to inform
this Court, within five days from receipt of this Decision, of the
actual date the appellant is released. No costs.


Crim 2

accused, did then and there, willfully, feloniously and unlawfully,
conspiring, confederating, helping with one another, while accused
JASPER AGBAY manipulating to finger the vagina of GAYLE FATIMA
AMIGABLE GICAYARA, his companion block the sight of the Private
Complainant, Mrs. JOAN A. GICAYARA, while on board a tricycle
going their destinations. Upon initial investigation of the Bgy,
Captain of Bgy. Catarman, accused SHERWIN JUGALBOT was
released and accused JASPER AGBAY is presently detain Liloan
Police Station Jail. Medical Certificate issued from Don Vicente
Sotto Memorial Medical Center, Cebu City is hereto attached.

G.R. No. 134503 July 2, 1999

AGBAY, petitioner, vs.
and SPO2 ELEAZAR M. SOLOMON, respondent.
This petition for certiorari seeks to nullify the Resolution of the Deputy
Ombudsman for the Military dated 19 January 1998 1 which recommended
the dismissal of the criminal complaint filed by petitioner against herein
private respondents for violation of Article 125 of the Revised Penal Code
for delay in the delivery of detained persons, and the Order of April 13,
1998 2 which denied his motion for reconsideration.
The pertinent facts leading to the filing of the petition at bar are as follows:
On September 7, 1997, petitioner, together with a certain Sherwin
Jugalbot, was arrested and detained at the Liloan Police Station, Metro
Cebu for an alleged violation of R.A. 7610, the "Special Protection of
Children Against Child abuse, Exploitation and Discrimination Act." 3 The
following day, or on September 8, 1997, a Complaint for violation of R.A.
7610 was filed against petitioner and Jugalbot before the 7th Municipal
Circuit Trial Court of Liloan, Metro Cebu by one Joan Gicaraya for and in
behalf of her daughter Gayle 4. The complaint, insofar as pertinent, reads
as follows:
That on the 7th day of September 1997 at Sitio Bonbon, Brgy.
Catarman, Liloan, Metro Cebu, Philippines and within the
Preliminary Jurisdiction of this Honorable Court, the above-named

On September 10, 1997, counsel for petitioner wrote the Chief of Police of
Liloan demanding the immediate release of petitioner considering that the
latter had "failed to deliver the detained Jasper Agbay to the proper judicial
authority within thirty-six (36) hours from September 7, 1997." 5 Private
respondents did not act on this letter and continued to detain petitioner. 6
On September 12; 1997, the 7th Municipal Circuit Trial Court of Liloan,
Metro Cebu issued an order, denominated as "Detention During the
Pendency of the Case", committing petitioner to the jail warden of Cebu
City. 7 Five (5) days later, or on September 17, 1997, petitioner was ordered
released by the said court after he had posted bond. 8
On September 26, 1997, petitioner filed a complaint for delay in the
delivery of detained persons against herein private respondents SPO4
Nemesio Natividad, Jr., SPO2 Eleazar M. Salomon and other unidentified
police officers stationed at the Liloan Police Substation, before the Office of
the Deputy Ombudsman for the Visayas. 9
Regarding the complaint for violation of R.A. 7610, it is alleged by
petitioner that on November 10, 1997, the 7th MCTC of Liloan, Metro Cebu
issued a resolution containing the following dispositive portion:
WHEREFORE, finding probable cause for the crime in Violation of
Republic Act 7610, it is hereby recommended that an
INFORMATION be filed against the two aforenamed accused.
Forward the record of this case to the Provincial Fiscal's Office for
appropriate action. 10
By virtue of Memorandum Circular No. 14, Series of 1995, dated 10
October 1995 of the Office of the Ombudsman, 11 the case for delay in
delivery filed by petitioner against herein private respondents before the
Deputy Ombudsman for the Visayas was transferred to the Deputy



Crim 2
Ombudsman for the Military for its proper disposition. Thus, it was this
office which acted on the complaint, now denominated as OMB-VIS-CRIM97-0786, and which issued the questioned Resolution dated January 19,
1998 recommending its dismissal against herein private respondents.
Petitioner moved for reconsideration of this Resolution but this motion was
denied in an Order dated April 13, 1998.
Hence, this petition for certiorari.
The grounds relied upon in the present petition 12 are as follows:


On the first issue, petitioner argues that due to the civilian character of the
Philippine National Police, the Office of the Deputy Ombudsman for the
Military, by virtue of the description of the Office, has no competence or
jurisdiction to act on his complaint against private respondents who are
members of the PNP. Petitioner also questions the constitutionality of
Memorandum Circular No. 14 insofar as it purports to vest the Office of the
Deputy Ombudsman for Military Affairs with jurisdiction to investigate all
cases against personnel of the Philippine National Police.1wphi1.nt
There is no dispute as to the civilian character of our police force. The 1987
Constitution, in Section 6, Article XVI, has mandated the establishment of
"one police force, which shall be national in scope and civilian
character(emphasis supplied)." Likewise, R.A. 6975 13 is categorical in
describing the civilian character of the police force. 14 The only question
now is whether Memorandum Circular No. 14, in vesting the Office of the
Deputy Ombudsman for the Military with jurisdiction to investigate
complaints against members of the PNP, violates the latter's civilian


As opined by the Office of the Solicitor General in its Comment dated 7

December 1998 15, the issue as to whether the Deputy Ombudsman for the
Military has the authority to investigate civilian personnel of the
government was resolved in the affirmative in the case of Acop v. Office of
the Ombudsman. 16 In that case, the petitioners, who were members of the
Philippine National Police questioned the jurisdiction of the Deputy
Ombudsman to investigate the alleged shootout of certain suspected
members of the "Kuratong Baleleng" robbery gang; this Court held that:
The deliberations on the Deputy for the military establishment do
not yield conclusive evidence that such deputy is prohibited from
performing other functions or duties affecting non-military
personnel. On the contrary, a review of the relevant Constitutional
provisions reveal otherwise.



Crim 2
As previously established, the Ombudsman "may exercise such
other powers or perform such functions or duties" as Congress may
prescribe through legisiation. Therefore, nothing can prevent
Congress from giving the Ombudsman supervision and control over
the Ombudsman's deputies, one being the deputy for the military
establishment. In this light, Section 11 of R.A. No. 6770 provides:
Sec. 11. Structural Organization. The authority
and responsibility for the exercise of the mandate
of the Office of the Ombudsman and for the
discharge of its powers and functions shall be
vested in the Ombudsman, who shall have
supervision and control of the said Office.
While Section 31 thereof declares:
Sec. 31. Designation of Investigators and
Prosecutors. The Ombudsman may utilize the
personnel of his office and/or designate or deputize
any fiscal, state prosecutor to assist in the
investigation and prosecution of certain cases.
Those designated or deputized to assist him herein
shall be under his supervision and control.
Accordingly, the Ombudsman may refer cases involving nonmilitary personnel for investigation by the Deputy for Military
Affairs. In these cases at bench, therefore, no irregularity attended
the referral by the Acting Ombudsman of the Kurutong Baleleng
case to respondent Casaclang who, in turn, created a panel of
investigators. 17
The cited case is determinative of the issue. However, petitioner, in his
Reply to Comment dated February 1, 1999, argues that the ruling in the
Acop case is not on all fours with the case at bar 18. Petitioner states that
the doctrine laid down in the said case is simply that "the Ombudsman
may refer cases involving non-military personnel for investigation by the
Deputy for Military Affairs. This doctrine, petitioner argues, "applies only to
isolated or individual cases involving non-military personnel referred by the
Ombudsman to the Deputy for Military Affairs" and does not apply when,
as in this case, there is a wholesale or indiscriminate referral of such cases
to the Deputy Ombudsman for Military Affairs in the form of an Office
Memorandum Circular.

Petitioner's arguments do not convince as there is no basis for the

There is no basis in the above-cited decision to limit the referral of cases
involving non-military personnel to the Deputy Ombudsman for Military
Affairs to isolated or individual cases. The Office of the Ombudsman, in
issuing Memorandum Circular No. 15, is simply exercising the power vested
in the Ombudsman "to utilize the personnel of his office and/or designate
or deputize any fiscal, state prosecutor or the or lawyer in the government
service to act as special investigator or prosecutor to assist in the
investigation and prosecution of certain cases." This Court, absent any
grave abuse of discretion, may not enterfere with the exercise by the
Ombudsman of his power of supervision and control over the said Office.
Petitioner further argues that Memorandum Circular No. 14 violates the
clear intent and policy of the Constitution and of R.A. 6975 to maintain the
civilian character of the police force and "would render nugatory and
meaningless the distinction between cases involving civilian and military
personnel and the creation of separate divisions of the Ombudsman." 19
Said contentions are misplaced.
The Deputy Ombudsman for the Military, despite his designation as such, is
by no means a member of the military establishment. The said Office was
established "to extend the Office of the Ombudsman to the military
establishment just as it champions the common people against
bureaucratic indifference". The Office was intended to help the "ordinary
foot soldiers" to obtain redress for their grievances against higher
authorities and the drafters of the Constitution were aware that the
creation of the Office, which is seemingly independent of the President, to
perform functions which constitutionally should be performed by the
President, might be in derogation of the powers of the President as
Commander-In-Chief of the Armed Forces 20.
It must be borne in mind that the Office of the Ombudsman was envisioned
by the framers of the 1987 Constitution as the "eyes and ears of the
people" 21 and "a champion of the citizen. 22" Sec. 12, Art. XI of the 1987
Constitution describes the Ombudsman and his deputies as "protectors of
the people." Thus, first and foremost, the Ombudsman and his deputies,
including the Deputy Ombudsman for the Military owe their allegiance to
the people and ordinary citizens, it is clearly not a part of the military. We
fail to see how the assumption of jurisdiction by the said office over the
investigation of cases involving the PNP would detract from or violate the


Crim 2
civilian character of the police force when precisely the Office of the
Ombudsman is a civilian office.
The other issues raised by petitioner concerns the application of Art. 125 of
the Revised Penal Code which provides as follows:
Art. 125. Delay in the delivery of detained persons to the proper
judicial authorities. The penalties provided in the next preceding
article shall be imposed upon the public officer or employee who
shall detain any person for some legal ground and shall fail to
deliver such person for the proper judicial authorities within the
period of: twelve (12) hours, for crimes or offenses punishable by
light penalties, or their equivalent; eighteen (18) hours, for crimes
or offenses punishable by correctional penalties, or their
equivalent; and thirty-six hours (36) hours, for crimes or offenses
punishable by afflictive or capital penalties, or their equivalent.
In every case, the person detained shall be informed of the cause
of his detention and shall be allowed, upon his request, to
communicate and confer at any time with his attorney or counsel.
In the case at bar, petitioner was arrested and detained at the Liloan Police
Station on 7 September 1997 for an alleged violation of R.A. 7610,
specifically section 5 (b) thereof 23. This crime carries a penalty of reclusion
temporal in its medium period to reclusion perpetua, an afflictive penalty.
Under these circumstances, a criminal complaint or information should be
filed with the proper judicial authorities within thirty six (36) hours of his
As borne by the records before us the mother of private complainant, Joan
Gicaraya, filed a complaint on 8 September 1997 against petitioner for
violation of R.A. 7610 before the 7th Municipal Circuit Trial Court of Liloan,
Metro Cebu.
Petitioner contends that the act of private complainant in filing the
complaint before the MCTC was for purposes of preliminary investigation as
the MCTC has no jurisdiction to try the offense. This act of private
complainant petitioner argues, was unnecessary, a surplusage which did
not interrupt the period prescribed by Art. 125 24 considering that under the
Rules it is the Regional Trial Court which has jurisdiction to try the case
against him. As such, upon the lapse of the thirty-six hours given to the
arresting officers to effect his delivery to the proper Regional Trial Court,
private respondents were already guilty of violating Art. 125. Thus,
petitioner argues, when the Judge-Designate of the 7th MCTC issued a

Commitment Order on September 12, 1997, he was acting contrary to law
since by then there was no basis for the continued detention of
petitioner. 25
In addressing the issue, the Office of the Deputy Ombudsman for the
Military in its 13 April 1998 Order, stated that the duty of filing the
corresponding complaint in court was "fulfille by respondent when the
formal complaint was filed on September 8, 1997 with the 7th MCTC of
Liloan-Compostela, barely 20 hours after the arrest of herein complainant
of September 7, 1997." 26 The Solicitor General, for his part, argues that
while a municipal court judge may conduct preliminary investigations as an
exception to his normal judicial duties, he still retains the authority to issue
an order of release or commitment. As such, upon the filing of the
complaint with the MCTC, there was already compliance with the very
purpose and intent of Art. 125 27.
The core issue is whether the filing of the complaint with the Municipal Trial
Court constitutes to a "proper judicial authority" as contemplated by Art.
125 of the Revised Penal Code.
Art. 125 of the Revised Penal Code is intended to prevent any abuse
resulting from confining a person without informing him of his offense and
without permitting him to go on bail 28. More specifically, it punishes public
officials or employees who shall detain any person for some legal ground
and shall fail to deliver such person to the proper judicial authorities within
the periods prescribed by law. The continued detention of the accused
becomes illegal upon the expiration of the periods provided for by Art. 125
without such detainee having been delivered to the corresponding judicial
The words "judicial authority" as contemplated by Art. 125 mean "the
courts of justices or judges of said courts vested with judicial power to
order the temporary detention or confinement of a person charged with
having committed a public offense, that is, the Supreme Court and other
such inferior courts as may be established by law. 30"
Petitioner takes great pains in arguing that when a municipal trial court
judge, as in the instant case, conducts a preliminary investigation, he is not
acting as a judge but as a fiscal. In support, petitioner cites the cases
ofSangguniang Bayan ng Batac, Ilocos Norte vs. Albano, 260 SCRA 561,
and Castillo vs. Villaluz, 171 SCRA 39, where it was held that "when a
preliminary investigation is conducted by a judge, he performs a nonjudicial function as an exception to his usual duties." Thus, petitioner
opines, the ruling in Sayo v. Chief of Police of Manila, 80 Phil. 862, that the



Crim 2
city fiscal is not the proper judicial authority referred to in Art. 125 is
Petitioner's reliance on the cited cases is misplaced. The cited cases of
Sangguniang Bayan and Castillo dealt with the issue of whether or not the
findings of the Municipal Court Judge in a preliminary investigation are
subject to review by provincial and city fiscals. There was no pronoucement
in these cases as to whether or not a municipal trial court, in the exercise
of its power to conduct preliminary investigations, is a proper judicial
authority as contemplated by Art. 125.
Neither can petitioner rely on the doctrine enunciated in Sayo vs. Chief of
Police, supra, since the facts of this case are different. In Sayo, the
complainant was filed with the city fiscal of Manila who could not issue an
order of release or commitment while in the instant case, the complaint
was filed with a judge who had the power to issue such an order.
Furthermore, in the Resolution denying the Motion for Reconsideration of
the Sayo case 31, this Court even made a pronouncement that the delivery
of a detained person "is a legal one and consists in making a charge or
filing a complaint against the prisoner with the proper justice of the peace
or judge of Court of First Instance in provinces, and in filing by the city
fiscal of an information with the corresponding city courts after an
investigation if the evidence against said person warrants."
The power to order the release or confinement of an accused is
determinative of the issue. In contrast with a city fiscal, it is undisputed
that a municipal court judge, even in the performance of his function to
conduct preliminary investigations, retains the power to issue an order of
release or commitment 32. Furthermore, upon the filing of the complaint
with the Municipal Trial Court, the intent behind art. 125 is satisfied
considering that by such act, the detained person is informed of the crime
imputed against him and, upon his application with the court, he may be
released on bail 33. Petitioner himself acknowledged this power of the MCTC
to order his release when he applied for and was granted his release upon
posting bail 34. Thus, the very purpose underlying Article 125 has been duly
served with the filing of the complaint with the MCTC. We agree with the
postion of the Ombudsman that such filing of the complaint with the MCTC
interrupted the period prescribed in said Article.
Finally, we note that it was the mother of private complainant who filed the
complaint against petitioner with the 7th MCTC of Liloan, Metro Cebu. If
tere was any error in this procedure, private respondents should not be
held liable. In the same manner, petitioner's argument that the
controversial orders issued by the MCTC are contrary' to law does not give
rise to criminal liability on the part of the respondents. Respondent police

officers may have rendered themselves open to sanctions if they had

released petitioners without the order of the court, knowing fully well that a
complainant was a already filed with it.
WHEREFORE, finding no grave abuse of discretion in the issuance of the
assailed January 19, 1998 Resolution and the April 13, 1998 Order of the
Office of the Deputy Ombudsman for the Military, the Court resolves to
DISMISS the petition. No pronouncement as to costs.

G.R. No. L-37007

July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of

Pangasinan, and ARMANDO VALDEZ,petitioners, vs. ANGELITO C.
SALANGA, in his capacity as Judge of the Court of First Instance of
Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents.
This is a petition for review on certiorari of an order of the Court of First
Instance of Pangasinan, Third Judicial District, in Criminal Case No. D-529
entitled "The People of the Philippines versus Juan Tuvera, Sr., et al.,"
granting the motion to quash the information filed by accused Juan Tuvera,
Sr., herein respondent. The issue is whether a barrio captain can be
charged of arbitrary detention.
The facts are as follows:
On October 12, 1972, an information for Arbitrary Detention was filed
against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court
of First Instance of Pangasinan, which reads as follows:



Crim 2
The undersigned Assistant Provincial Fiscal accuses Juan Tuvera,
Sr., Tomas Mendoza and Rodolfo Mangsat alias Rudy, all of
Manaoag, Pangasinan, of the crime of ARBITRARY DETENTION,
committed as follows:
That on or about the 21st day of April 1973, at around 10:00
o'clock in the evening, in barrio Baguinay, Manaoag, Pangasinan,
Philippines and within the jurisdiction of this Honorable Court,
accused Juan Tuvera, Sr., a barrio captain, with the aid of some
other private persons, namely Juan Tuvera, Jr., Bertillo Bataoil and
one Dianong, maltreated one Armando Valdez by hitting with butts
of their guns and fists blows and immediately thereafter, without
legal grounds, with deliberate intent to deprive said Armando
Valdez of his constitutional liberty, accused Barrio captain Juan
Tuvera, Sr., Cpl. Tomas Mendoza and Pat. Rodolfo Mangsat,
members of the police force of Mangsat, Pangasinan conspiring,
confederating and helping one another, did, then and there,
willfully, unlawfully and feloniously, lodge and lock said Armando
Valdez inside the municipal jail of Manaoag, Pangasinan for about
eleven (11) hours. (Emphasis supplied.)

Arbitrary Detention is committed by a public officer who, without legal

grounds, detains a person.1 The elements of this crime are the following:

That the offender is a public officer or employee.


That he detains a person.


That the detention is without legal grounds.2

The ground relied upon by private respondent Tuvera for his motion to
quash the information which was sustained by respondent Judge, is that
the facts charged do not constitute an offense, 3 that is, that the facts
alleged in the information do not constitute the elements of Arbitrary
The Information charges Tuvera, a barrio captain, to have conspired with
Cpl. Mendoza and Pat. Mangsat, who are members of the police force of
Manaoag, Pangasinan in detaining petitioner Valdez for about eleven (11)
hours in the municipal jail without legal ground. No doubt the last two
elements of the crime are present.


The only question is whether or not Tuvera, Sr., a barrio captain is a public
officer who can be liable for the crime of Arbitrary Detention.

Dagupan City, October 12, 1972.

Assistant Provincial Fiscal



All the accused, including respondent Juan Tuvera, Sr., were arraigned and
pleaded not guilty.
On April 4, 1973, Tuvera filed a motion to quash the information on the
ground that the facts charged do not constitute an offense and that the
proofs adduced at the investigation are not sufficient to support the filing
of the information. Petitioner Assistant Provincial Fiscal Ramon S. Milo filed
an opposition thereto.
Finding that respondent Juan Tuvera, Sr. was not a public officer who can be
charged with Arbitrary Detention, respondent Judge Angelito C. Salanga
granted the motion to quash in an order dated April 25, 1973.
Hence, this petition.

The public officers liable for Arbitrary Detention must be vested with
authority to detain or order the detention of persons accused of a crime.
Such public officers are the policemen and other agents of the law, the
judges or mayors.4
Respondent Judge Salanga did not consider private respondent Tuvera as
such public officer when the former made this finding in the questioned
Apparently, if Armando Valdez was ever jailed and detained more
than six (6) hours, Juan Tuvera, Sr., has nothing to do with the
same because he is not in any way connected with the Police Force
of Manaoag, Pangasinan. Granting that it was Tuvera, Sr., who
ordered Valdez arrested, it was not he who detained and jailed him
because he has no such authority vested in him as a mere Barrio
Captain of Barrio Baguinay, Manaoag, Pangasinan. 5
In line with the above finding of respondent Judge Salanga, private
respondent Tuvera asserts that the motion to quash was properly sustained


Crim 2
for the following reasons: (1) That he did not have the authority to make
arrest, nor jail and detain petitioner Valdez as a mere barrio captain; 6 (2)
That he is neither a peace officer nor a policeman, 7(3) That he was not a
public official;8 (4) That he had nothing to do with the detention of
petitioner Valdez;9 (5) That he is not connected directly or indirectly in the
administration of the Manaoag Police Force; 10 (6) That barrio captains on
April 21, 1972 were not yet considered as persons in authority and that it
was only upon the promulgation of Presidential Decree No. 299 that Barrio
Captain and Heads of Barangays were decreed among those who are
persons in authority;11 and that the proper charge was Illegal Detention
and Not Arbitrary Detention.12
We disagree.
Long before Presidential Decree 299 was signed into law, barrio lieutenants
(who were later named barrio captains and now barangay captains) were
recognized as persons in authority. In various cases, this Court deemed
them as persons in authority, and convicted them of Arbitrary Detention.
In U.S. vs. Braganza,13 Martin Salibio, a barrio lieutenant, and Hilario
Braganza, a municipal councilor, arrested Father Feliciano Gomez while he
was in his church. They made him pass through the door of the vestry and
afterwards took him to the municipal building. There, they told him that he
was under arrest. The priest had not committed any crime. The two public
officials were convicted of Arbitrary Detention.14
In U.S. vs. Gellada,15 Geronimo Gellada, a barrio lieutenant, with the help of
Filoteo Soliman, bound and tied his houseboy Sixto Gentugas with a rope at
around 6:00 p.m. and delivered him to the justice of the peace. Sixto was
detained during the whole night and until 9:00 a.m. of the next day when
he was ordered released by the justice of the peace because he had not
committed any crime, Gellada was convicted of Arbitrary Detention. 16
Under Republic Act No. 3590, otherwise known as The Revised Barrio
Charter, the powers and duties of a barrio captain include the following: to
look after the maintenance of public order in the barrio and to assist the
municipal mayor and the municipal councilor in charge of the district in the
performance of their duties in such barrio;17 to look after the general
welfare of the barrio;18 to enforce all laws and ordinances which are
operative within the barrio;19and to organize and lead an emergency group
whenever the same may be necessary for the maintenance of peace and
order within the barrio.20

In his treatise on Barrio Government Law and Administration, Professor Jose
M. Aruego has this to say about the above-mentioned powers and duties of
a Barrio Captain, to wit:
"Upon the barrio captain depends in the main the maintenance of public
order in the barrio. For public disorder therein, inevitably people blame
"In the event that there be a disturbing act to said public order or a threat
to disturb public order, what can the barrio captain do? Understandably, he
first resorts to peaceful measures. He may take preventive measures like
placing the offenders under surveillance and persuading them, where
possible, to behave well, but when necessary, he may subject them to the
full force of law.
"He is a peace officer in the barrio considered under the law as a person in
authority. As such, he may make arrest and detain persons within legal
limits.21 (Emphasis supplied.)
One need not be a police officer to be chargeable with Arbitrary Detention.
It is accepted that other public officers like judges and mayors, who act
with abuse of their functions, may be guilty of this crime. 22 A perusal of the
powers and function vested in mayors would show that they are similar to
those of a barrio captain23 except that in the case of the latter, his
territorial jurisdiction is smaller. Having the same duty of maintaining
peace and order, both must be and are given the authority to detain or
order detention. Noteworthy is the fact that even private respondent
Tuvera himself admitted that with the aid of his rural police, he as a barrio
captain, could have led the arrest of petitioner Valdez. 24
From the foregoing, there is no doubt that a barrio captain, like private
respondent Tuvera, Sr., can be held liable for Arbitrary Detention.
Next, private respondent Tuvera, Sr. contends that the motion to quash was
validly granted as the facts and evidence on record show that there was no
crime of Arbitrary Detention;25 that he only sought the aid and assistance
of the Manaoag Police Force;26 and that he only accompanied petitioner
Valdez to town for the latter's personal safety.27
Suffice it to say that the above allegations can only be raised as a defense
at the trial as they traverse what is alleged in the Information. We have
repeatedly held that Courts, in resolving a motion to quash, cannot
consider facts contrary to those alleged in the information or which do not
appear on the face of the information. This is because a motion to quash is


Crim 2


a hypothetical admission of the facts alleged in the information. 28 Matters

of defense cannot be proved during the hearing of such a motion, except
where the Rules expressly permit, such as extinction of criminal liability,
prescription, and former jeopardy. 29 In the case of U.S. vs. Perez,30 this
Court held that a motion to quash on the ground that the facts charged do
not constitute an offense cannot allege new facts not only different but
diametrically opposed to those alleged in the complaint. This rule admits of
only one exception and that is when such facts are admitted by the
Lastly, private respondent claims that by the lower court's granting of the
motion to quash jeopardy has already attached in his favor 32 on the ground
that here, the case was dismissed or otherwise terminated without his
express consent.
Respondent's contention holds no water. An order granting a motion to
quash, unlike one of denial, is a final order. It is not merely interlocutory
and is therefore immediately appealable. The accused cannot claim double
jeopardy as the dismissal was secured not only with his consent but at his
WHEREFORE, in view of the foregoing, the Petition for certiorari is
GRANTED. The questioned Order of April 25, 1973 in Criminal Case No. D529 is hereby set aside. Let this case be remanded to the appropriate trial
court for further proceedings. No pronouncement as to costs.



Crim 2

the steamers by a representative of the Bureau of Labor and a detachment

of Constabulary soldiers. The two steamers with their unwilling passengers
sailed for Davao during the night of October 25.
G.R. No. L-14639

March 25, 1919


AL., respondents.
The annals of juridical history fail to reveal a case quite as remarkable as
the one which this application for habeas corpus submits for decision.
While hardly to be expected to be met with in this modern epoch of
triumphant democracy, yet, after all, the cause presents no great difficulty
if there is kept in the forefront of our minds the basic principles of popular
government, and if we give expression to the paramount purpose for which
the courts, as an independent power of such a government, were
constituted. The primary question is Shall the judiciary permit a
government of the men instead of a government of laws to be set up in the
Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but
which might prove profitable reading for other departments of the
government, the facts are these: The Mayor of the city of Manila, Justo
Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a
number of years in the city of Manila, closed. Between October 16 and
October 25, 1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of Labor for sending the
women to Davao, Mindanao, as laborers; with some government office for
the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of
October 25, the police, acting pursuant to orders from the chief of police,
Anton Hohmann and the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170 inmates into patrol wagons,
and placed them aboard the steamers that awaited their arrival. The
women were given no opportunity to collect their belongings, and
apparently were under the impression that they were being taken to a
police station for an investigation. They had no knowledge that they were
destined for a life in Mindanao. They had not been asked if they wished to
depart from that region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were received on board

The vessels reached their destination at Davao on October 29. The women
were landed and receipted for as laborers by Francisco Sales, provincial
governor of Davao, and by Feliciano Yigo and Rafael Castillo. The
governor and the hacendero Yigo, who appear as parties in the case, had
no previous notification that the women were prostitutes who had been
expelled from the city of Manila. The further happenings to these women
and the serious charges growing out of alleged ill-treatment are of public
interest, but are not essential to the disposition of this case. Suffice it to
say, generally, that some of the women married, others assumed more or
less clandestine relations with men, others went to work in different
capacities, others assumed a life unknown and disappeared, and a goodly
portion found means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and
the Negros were putting in to Davao, the attorney for the relatives and
friends of a considerable number of the deportees presented an application
for habeas corpus to a member of the Supreme Court. Subsequently, the
application, through stipulation of the parties, was made to include all of
the women who were sent away from Manila to Davao and, as the same
questions concerned them all, the application will be considered as
including them. The application set forth the salient facts, which need not
be repeated, and alleged that the women were illegally restrained of their
liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief
of police of the city of Manila, and by certain unknown parties. The writ was
made returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that the writ should not be
granted because the petitioners were not proper parties, because the
action should have been begun in the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the respondents did not have
any of the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on the haciendas of
Yigo and Governor Sales. In open court, the fiscal admitted, in answer to
question of a member of the court, that these women had been sent out of
Manila without their consent. The court awarded the writ, in an order of
November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Francisco Sales, governor of
the province of Davao, and Feliciano Yigo, an hacenderoof Davao, to bring


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before the court the persons therein named, alleged to be deprived of their
liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at
their own expense. On motion of counsel for petitioners, their testimony
was taken before the clerk of the Supreme Court sitting as commissioners.
On the day named in the order, December 2nd, 1918, none of the persons
in whose behalf the writ was issued were produced in court by the
respondents. It has been shown that three of those who had been able to
come back to Manila through their own efforts, were notified by the police
and the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand taken by
him when pleading to the original petition copied a telegram from the
Mayor of the city of Manila to the provincial governor of Davao and the
answer thereto, and telegrams that had passed between the Director of
Labor and the attorney for that Bureau then in Davao, and offered certain
affidavits showing that the women were contained with their life in
Mindanao and did not wish to return to Manila. Respondents Sales
answered alleging that it was not possible to fulfill the order of the
Supreme Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and because they
had married or signed contracts as laborers. Respondent Yigo answered
alleging that he did not have any of the women under his control and that
therefore it was impossible for him to obey the mandate. The court, after
due deliberation, on December 10, 1918, promulgated a second order,
which related that the respondents had not complied with the original
order to the satisfaction of the court nor explained their failure to do so,
and therefore directed that those of the women not in Manila be brought
before the court by respondents Lukban, Hohmann, Sales, and Yigo on
January 13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the clerk of
that court, renounce the right, or unless the respondents should
demonstrate some other legal motives that made compliance impossible. It
was further stated that the question of whether the respondents were in
contempt of court would later be decided and the reasons for the order
announced in the final decision.
Before January 13, 1919, further testimony including that of a number of
the women, of certain detectives and policemen, and of the provincial
governor of Davao, was taken before the clerk of the Supreme Court sitting
as commissioner and the clerk of the Court of First Instance of Davao
acting in the same capacity. On January 13, 1919, the respondents
technically presented before the Court the women who had returned to the
city through their own efforts and eight others who had been brought to
Manila by the respondents. Attorneys for the respondents, by their returns,

once again recounted the facts and further endeavored to account for all of
the persons involved in thehabeas corpus. In substance, it was stated that
the respondents, through their representatives and agents, had succeeded
in bringing from Davao with their consent eight women; that eighty-one
women were found in Davao who, on notice that if they desired they could
return to Manila, transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by other means,
and that despite all efforts to find them twenty-six could not be located.
Both counsel for petitioners and the city fiscal were permitted to submit
memoranda. The first formally asked the court to find Justo Lukban, Mayor
of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Jose Rodriguez and Fernando Ordax, members of the police force of the city
of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the
attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of
Manila, in contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents' memorandum)
dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for granting
the writ of habeas corpus in the final decision. We will now proceed to do
One fact, and one fact only, need be recalled these one hundred and
seventy women were isolated from society, and then at night, without their
consent and without any opportunity to consult with friends or to defend
their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left
voluntarily and gladly, that such was not the case is shown by the mere
fact that the presence of the police and the constabulary was deemed
necessary and that these officers of the law chose the shades of night to
cloak their secret and stealthy acts. Indeed, this is a fact impossible to
refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By
authority of what law did the Mayor and the Chief of Police presume to act
in deporting by duress these persons from Manila to another distant
locality within the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity
with an Act of congress. The Governor-General can order the eviction of
undesirable aliens after a hearing from the Islands. Act No. 519 of the
Philippine Commission and section 733 of the Revised Ordinances of the
city of Manila provide for the conviction and punishment by a court of
justice of any person who is a common prostitute. Act No. 899 authorizes
the return of any citizen of the United States, who may have been


Crim 2


convicted of vagrancy, to the homeland. New York and other States have
statutes providing for the commitment to the House of Refuge of women
convicted of being common prostitutes. Always a law! Even when the
health authorities compel vaccination, or establish a quarantine, or place a
leprous person in the Culion leper colony, it is done pursuant to some law
or order. But one can search in vain for any law, order, or regulation, which
even hints at the right of the Mayor of the city of Manila or the chief of
police of that city to force citizens of the Philippine Islands and these
women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens to change their domicile from Manila to
another locality. On the contrary, Philippine penal law specifically punishes
any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.

United States, "is the only supreme power in our system of government,
and every man who by accepting office participates in its functions is only
the more strongly bound to submit to that supremacy, and to observe the
limitations which it imposes upon the exercise of the authority which it
gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said
Justice Matthews of the same high tribunal in another case, "that one man
may be compelled to hold his life, or the means of living, or any material
right essential to the enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.)
All this explains the motive in issuing the writ ofhabeas corpus, and makes
clear why we said in the very beginning that the primary question was
whether the courts should permit a government of men or a government of
laws to be established in the Philippine Islands.

In other countries, as in Spain and Japan, the privilege of domicile is

deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of abode is
a principle so deeply imbedded in jurisprudence and considered so
elementary in nature as not even to require a constitutional sanction. Even
the Governor-General of the Philippine Islands, even the President of the
United States, who has often been said to exercise more power than any
king or potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality, who acts
within a sphere of delegated powers. If the mayor and the chief of police
could, at their mere behest or even for the most praiseworthy of motives,
render the liberty of the citizen so insecure, then the presidents and chiefs
of police of one thousand other municipalities of the Philippines have the
same privilege. If these officials can take to themselves such power, then
any other official can do the same. And if any official can exercise the
power, then all persons would have just as much right to do so. And if a
prostitute could be sent against her wishes and under no law from one
locality to another within the country, then officialdom can hold the same
club over the head of any citizen.

What are the remedies of the unhappy victims of official oppression? The
remedies of the citizen are three: (1) Civil action; (2) criminal action, and
(3) habeas corpus.

Law defines power. Centuries ago Magna Charta decreed that "No
freeman shall be taken, or imprisoned, or be disseized of his freehold, or
liberties, or free customs, or be outlawed, or exiled, or any other wise
destroyed; nor will we pass upon him nor condemn him, but by lawful
judgment of his peers or by the law of the land. We will sell to no man, we
will not deny or defer to any man either justice or right." (Magna Charta, 9
Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter
how high, is above the law. The courts are the forum which functionate to
safeguard individual liberty and to punish official transgressors. "The law,"
said Justice Miller, delivering the opinion of the Supreme Court of the

The first is an optional but rather slow process by which the aggrieved
party may recoup money damages. It may still rest with the parties in
interest to pursue such an action, but it was never intended effectively and
promptly to meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these
Islands provides:
Any public officer not thereunto authorized by law or by regulations
of a general character in force in the Philippines who shall banish
any person to a place more than two hundred kilometers distant
from his domicile, except it be by virtue of the judgment of a court,
shall be punished by a fine of not less than three hundred and
twenty-five and not more than three thousand two hundred and
fifty pesetas.
Any public officer not thereunto expressly authorized by law or by
regulation of a general character in force in the Philippines who
shall compel any person to change his domicile or residence shall
suffer the penalty of destierro and a fine of not less than six
hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this provision


Crim 2
of law, these prosecutors will institute and press a criminal prosecution just
as vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty
thereof can be proceeded against, is no bar to the instant proceedings. To
quote the words of Judge Cooley in a case which will later be referred
to "It would be a monstrous anomaly in the law if to an application by
one unlawfully confined, ta be restored to his liberty, it could be a sufficient
answer that the confinement was a crime, and therefore might be
continued indefinitely until the guilty party was tried and punished therefor
by the slow process of criminal procedure." (In the matter of Jackson
[1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful
restraint, and as the best and only sufficient defense of personal freedom.
Any further rights of the parties are left untouched by decision on the writ,
whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised
three specific objections to its issuance in this instance. The fiscal has
argued (l) that there is a defect in parties petitioners, (2) that the Supreme
Court should not a assume jurisdiction, and (3) that the person in question
are not restrained of their liberty by respondents. It was finally suggested
that the jurisdiction of the Mayor and the chief of police of the city of
Manila only extends to the city limits and that perforce they could not bring
the women from Davao.

sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made
returnable before the Supreme Court or before an inferior court rests in the
discretion of the Supreme Court and is dependent on the particular
circumstances. In this instance it was not shown that the Court of First
Instance of Davao was in session, or that the women had any means by
which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that the case
involved parties situated in different parts of the Islands; it was shown that
the women might still be imprisoned or restrained of their liberty; and it
was shown that if the writ was to accomplish its purpose, it must be taken
cognizance of and decided immediately by the appellate court. The failure
of the superior court to consider the application and then to grant the writ
would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet.
When the writ was prayed for, says counsel, the parties in whose behalf it
was asked were under no restraint; the women, it is claimed, were free in
Davao, and the jurisdiction of the mayor and the chief of police did not
extend beyond the city limits. At first blush, this is a tenable position. On
closer examination, acceptance of such dictum is found to be perversive of
the first principles of the writ of habeas corpus.

The first defense was not presented with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way the
expulsion was conducted by the city officials made it impossible for the
women to sign a petition for habeas corpus. It was consequently proper for
the writ to be submitted by persons in their behalf. (Code of Criminal
Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its
zealous regard for personal liberty, even makes it the duty of a court or
judge to grant a writ of habeas corpus if there is evidence that within the
court's jurisdiction a person is unjustly imprisoned or restrained of his
liberty, though no application be made therefor. (Code of Criminal
Procedure, sec. 93.) Petitioners had standing in court.

A prime specification of an application for a writ of habeas corpus is

restraint of liberty. The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary restraint as distinguished
from voluntary, and to relieve a person therefrom if such restraint is illegal.
Any restraint which will preclude freedom of action is sufficient. The
forcible taking of these women from Manila by officials of that city, who
handed them over to other parties, who deposited them in a distant region,
deprived these women of freedom of locomotion just as effectively as if
they had been imprisoned. Placed in Davao without either money or
personal belongings, they were prevented from exercising the liberty of
going when and where they pleased. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and
released or until they freely and truly waived his right.

The fiscal next contended that the writ should have been asked for in the
Court of First Instance of Davao or should have been made returnable
before that court. It is a general rule of good practice that, to avoid
for habeas
corpus should be presented to the nearest judge of the court of first
instance. But this is not a hard and fast rule. The writ of habeas
corpus may be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure,

Consider for a moment what an agreement with such a defense would

mean. The chief executive of any municipality in the Philippines could
forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend his
official action, could calmly fold his hands and claim that the person was
under no restraint and that he, the official, had no jurisdiction over this
other municipality. We believe the true principle should be that, if the
respondent is within the jurisdiction of the court and has it in his power to


Crim 2
obey the order of the court and thus to undo the wrong that he has
inflicted, he should be compelled to do so. Even if the party to whom the
writ is addressed has illegally parted with the custody of a person before
the application for the writ is no reason why the writ should not issue. If the
mayor and the chief of police, acting under no authority of law, could
deport these women from the city of Manila to Davao, the same officials
must necessarily have the same means to return them from Davao to
Manila. The respondents, within the reach of process, may not be
permitted to restrain a fellow citizen of her liberty by forcing her to change
her domicile and to avow the act with impunity in the courts, while the
person who has lost her birthright of liberty has no effective recourse. The
great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the
courts for decision. Nevertheless, strange as it may seem, a close
examination of the authorities fails to reveal any analogous case. Certain
decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an
early date as to whether or not a writ ofhabeas corpus would issue from
the Supreme Court to a person within the jurisdiction of the State to bring
into the State a minor child under guardianship in the State, who has been
and continues to be detained in another State. The membership of the
Michigan Supreme Court at this time was notable. It was composed of
Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On
the question presented the court was equally divided. Campbell, J., with
whom concurred Martin, C. J., held that the writ should be quashed. Cooley,
J., one of the most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should issue. Since the
opinion of Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter appear, the
English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid before
us. . . .
It would be strange indeed if, at this late day, after the eulogiums
of six centuries and a half have been expended upon the Magna
Charta, and rivers of blood shed for its establishment; after its
many confirmations, until Coke could declare in his speech on the
petition of right that "Magna Charta was such a fellow that he will
have no sovereign," and after the extension of its benefits and
securities by the petition of right, bill of rights and habeas

corpus acts, it should now be discovered that evasion of that great
clause for the protection of personal liberty, which is the life and
soul of the whole instrument, is so easy as is claimed here. If it is
so, it is important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt they
would, on the subject being brought to their notice. . . .
The second proposition that the statutory provisions are
confined to the case of imprisonment within the state seems to
me to be based upon a misconception as to the source of our
jurisdiction. It was never the case in England that the court of
king's bench derived its jurisdiction to issue and enforce this writ
from the statute. Statutes were not passed to give the right, but to
compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served upon,
not the person confined, but his jailor. It does not reach the former
except through the latter. The officer or person who serves it does
not unbar the prison doors, and set the prisoner free, but the court
relieves him by compelling the oppressor to release his constraint.
The whole force of the writ is spent upon the respondent, and if he
fails to obey it, the means to be resorted to for the purposes of
compulsion are fine and imprisonment. This is the ordinary mode of
affording relief, and if any other means are resorted to, they are
only auxiliary to those which are usual. The place of confinement
is, therefore, not important to the relief, if the guilty party is within
reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is
not increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am aware
of no other remedy. (In the matter of Jackson [1867], 15 Mich.,
The opinion of Judge Cooley has since been accepted as authoritative by
other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People
[1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a
child had been taken out of English by the respondent. A writ of habeas
corpus was issued by the Queen's Bench Division upon the application of
the mother and her husband directing the defendant to produce the child.
The judge at chambers gave defendant until a certain date to produce the
child, but he did not do so. His return stated that the child before the


Crim 2


issuance of the writ had been handed over by him to another; that it was
no longer in his custody or control, and that it was impossible for him to
obey the writ. He was found in contempt of court. On appeal, the court,
through Lord Esher, M. R., said:

produced the two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also
Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p.

A writ of habeas corpus was ordered to issue, and was issued on

January 22. That writ commanded the defendant to have the body
of the child before a judge in chambers at the Royal Courts of
Justice immediately after the receipt of the writ, together with the
cause of her being taken and detained. That is a command to bring
the child before the judge and must be obeyed, unless some lawful
reason can be shown to excuse the nonproduction of the child. If it
could be shown that by reason of his having lawfully parted with
the possession of the child before the issuing of the writ, the
defendant had no longer power to produce the child, that might be
an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the
Court for not obeying the writ without lawful excuse. Many efforts
have been made in argument to shift the question of contempt to
some anterior period for the purpose of showing that what was
done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ.
The question is whether there has been a contempt in disobeying
the writ it was issued by not producing the child in obedience to its
commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See
also to the same effect the Irish case of In re Matthews, 12 Ir. Com.
Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case
[1890], 24 Q. B. D., 283.)

We find, therefore, both on reason and authority, that no one of the

defense offered by the respondents constituted a legitimate bar to the
granting of the writ of habeas corpus.

A decision coming from the Federal Courts is also of interest. A habeas

corpus was directed to the defendant to have before the circuit court of the
District of Columbia three colored persons, with the cause of their
detention. Davis, in his return to the writ, stated on oath that he had
purchased the negroes as slaves in the city of Washington; that, as he
believed, they were removed beyond the District of Columbia before the
service of the writ of habeas corpus, and that they were then beyond his
control and out of his custody. The evidence tended to show that Davis had
removed the negroes because he suspected they would apply for a writ
of habeas corpus. The court held the return to be evasive and insufficient,
and that Davis was bound to produce the negroes, and Davis being present
in court, and refusing to produce them, ordered that he be committed to
the custody of the marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court afterwards ordered
that Davis be released upon the production of two of the negroes, for one
of the negroes had run away and been lodged in jail in Maryland. Davis

There remains to be considered whether the respondent complied with the

two orders of the Supreme Court awarding the writ of habeas corpus, and if
it be found that they did not, whether the contempt should be punished or
be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yigo to present the persons named in the
writ before the court on December 2, 1918. The order was dated November
4, 1918. The respondents were thus given ample time, practically one
month, to comply with the writ. As far as the record discloses, the Mayor of
the city of Manila waited until the 21st of November before sending a
telegram to the provincial governor of Davao. According to the response of
the attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but who
should not be permitted to do so because of having contracted debts. The
half-hearted effort naturally resulted in none of the parties in question
being brought before the court on the day named.
For the respondents to have fulfilled the court's order, three optional
courses were open: (1) They could have produced the bodies of the
persons according to the command of the writ; or (2) they could have
shown by affidavit that on account of sickness or infirmity those persons
could not safely be brought before the court; or (3) they could have
presented affidavits to show that the parties in question or their attorney
waived the right to be present. (Code of Criminal Procedure, sec. 87.) They
did not produce the bodies of the persons in whose behalf the writ was
granted; they did not show impossibility of performance; and they did not
present writings that waived the right to be present by those interested.
Instead a few stereotyped affidavits purporting to show that the women
were contended with their life in Davao, some of which have since been
repudiated by the signers, were appended to the return. That through
ordinary diligence a considerable number of the women, at least sixty,
could have been brought back to Manila is demonstrated to be found in the
municipality of Davao, and that about this number either returned at their
own expense or were produced at the second hearing by the respondents.


Crim 2
The court, at the time the return to its first order was made, would have
been warranted summarily in finding the respondents guilty of contempt of
court, and in sending them to jail until they obeyed the order. Their
excuses for the non-production of the persons were far from sufficient. The,
authorities cited herein pertaining to somewhat similar facts all tend to
indicate with what exactitude a habeas corpus writ must be fulfilled. For
example, in Gossage's case, supra, the Magistrate in referring to an earlier
decision of the Court, said: "We thought that, having brought about that
state of things by his own illegal act, he must take the consequences ; and
we said that he was bound to use every effort to get the child back; that he
must do much more than write letters for the purpose; that he must
advertise in America, and even if necessary himself go after the child, and
do everything that mortal man could do in the matter; and that the court
would only accept clear proof of an absolute impossibility by way of
excuse." In other words, the return did not show that every possible effort
to produce the women was made by the respondents. That the court
forebore at this time to take drastic action was because it did not wish to
see presented to the public gaze the spectacle of a clash between
executive officials and the judiciary, and because it desired to give the
respondents another chance to demonstrate their good faith and to
mitigate their wrong.
In response to the second order of the court, the respondents appear to
have become more zealous and to have shown a better spirit. Agents were
dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges
in such a bitterly contested case are to be expected, and while a critical
reading of the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial compliance with
it. Our finding to this effect may be influenced somewhat by our sincere
desire to see this unhappy incident finally closed. If any wrong is now being
perpetrated in Davao, it should receive an executive investigation. If any
particular individual is still restrained of her liberty, it can be made the
object of separate habeas corpus proceedings.
Since the writ has already been granted, and since we find a substantial
compliance with it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police
force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of
Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of
the city of Manila.

The power to punish for contempt of court should be exercised on the
preservative and not on the vindictive principle. Only occasionally should
the court invoke its inherent power in order to retain that respect without
which the administration of justice must falter or fail. Nevertheless when
one is commanded to produce a certain person and does not do so, and
does not offer a valid excuse, a court must, to vindicate its authority,
adjudge the respondent to be guilty of contempt, and must order him
either imprisoned or fined. An officer's failure to produce the body of a
person in obedience to a writ of habeas corpus when he has power to do
so, is a contempt committed in the face of the court. (Ex parte Sterns
[1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for
human imperfections, we cannot say that any of the respondents, with the
possible exception of the first named, has flatly disobeyed the court by
acting in opposition to its authority. Respondents Hohmann, Rodriguez,
Ordax, and Joaquin only followed the orders of their chiefs, and while,
under the law of public officers, this does not exonerate them entirely, it is
nevertheless a powerful mitigating circumstance. The hacendero Yigo
appears to have been drawn into the case through a misconstruction by
counsel of telegraphic communications. The city fiscal, Anacleto Diaz,
would seem to have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of any
disrespect to the court, his counter-motion to strike from the record the
memorandum of attorney for the petitioners, which brings him into this
undesirable position, must be granted. When all is said and done, as far as
this record discloses, the official who was primarily responsible for the
unlawful deportation, who ordered the police to accomplish the same, who
made arrangements for the steamers and the constabulary, who
conducted the negotiations with the Bureau of Labor, and who later, as the
head of the city government, had it within his power to facilitate the return
of the unfortunate women to Manila, was Justo Lukban, the Mayor of the
city of Manila. His intention to suppress the social evil was commendable.
His methods were unlawful. His regard for the writ of habeas corpus issued
by the court was only tardily and reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the Code of
Civil Procedure, which relates to the penalty for disobeying the writ, and in
pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members
of the court are inclined to this stern view. It would also be possible to find
that since respondent Lukban did comply substantially with the second
order of the court, he has purged his contempt of the first order. Some
members of the court are inclined to this merciful view. Between the two


Crim 2
extremes appears to lie the correct finding. The failure of respondent
Lukban to obey the first mandate of the court tended to belittle and
embarrass the administration of justice to such an extent that his later
activity may be considered only as extenuating his conduct. A nominal fine
will at once command such respect without being unduly
oppressive such an amount is P100.

Yigo, and Diaz are found not to be in contempt of court. Respondent
Lukban is found in contempt of court and shall pay into the office of the
clerk of the Supreme Court within five days the sum of one hundred pesos
(P100). The motion of the fiscal of the city of Manila to strike from the
record theReplica al Memorandum de los Recurridos of January 25, 1919, is
granted. Costs shall be taxed against respondents. So ordered.

In resume as before stated, no further action on the writ of habeas

corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin,