G.R. No.

L-409 January 30, 1947

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.

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

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

RESOLUTION

In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition
for habeas 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 so-called period of suspension; that what may be
suspended is the exercise of the rights of sovereignty with the control and government of the
territory occupied by the enemy passes temporarily to the occupant; that the subsistence of
the sovereignty of the legitimate government in a territory occupied by the military forces of
the enemy during the war, "although the former is in fact prevented from exercising the
supremacy over them" is one of the "rules of international law of our times"; (II Oppenheim,
6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44,
45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the
sovereignty itself is not suspended and subsists during the enemy occupation, the allegiance
of the inhabitants to their legitimate government or sovereign subsists, and therefore there is
no such thing as suspended allegiance, the basic theory on which the whole fabric of the
petitioner's contention rests;

Considering that the conclusion that the sovereignty of the United State was suspended in
Castine, set forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246, 253,
decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan
Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection with the question,
not of sovereignty, but of the existence of a government de 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,
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 the occupied territory were
compelled illegally by the military occupant, through force, threat or intimidation, to give him
aid and comfort, the former may lawfully resist and die if necessary as a hero, or submit
thereto without becoming a traitor;

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

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

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

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

Separate Opinions

PERFECTO, J., concurring:

Treason is a war crime. It is not an all-time offense. It cannot be committed in peace time. While
there is peace, there are no traitors. Treason may be incubated when peace reigns. Treasonable
acts may actually be perpetrated during peace, but there are no traitors until war has started.

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

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

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

"Allegiance", as the return is generally used, means fealty or fidelity to the government of
which the person is either a citizen or subject. Murray vs. The Charming Betsy, 6 U.S. (2
Cranch), 64, 120; 2 Law. ed., 208.

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

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

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

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

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

Classification. Allegiance is of four kinds, namely: (1) Natural allegiance that which
arises by nature and birth; (2) acquired allegiance that arising through some circumstance
or act other than birth, namely, by denization or naturalization; (3) local allegiance-- that
arising from residence simply within the country, for however short a time; and (4) legal
allegiance that arising from oath, taken usually at the town or leet, for, by the common
law, the oath of allegiance might be tendered to every one upon attaining the age of twelve
years. (3 C.J.S., p.885.)

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

"Allegiance," as its etymology indicates, is the name for the tie which binds the citizen to his
state the obligation of obedience and support which he owes to it. The state is the political
person to whom this liege fealty is due. Its substance is the aggregate of persons owing this
allegiance. The machinery through which it operates is its government. The persons who
operate this machinery constitute its magistracy. The rules of conduct which the state utters
or enforces are its law, and manifest its will. This will, viewed as legally supreme, is its
sovereignty. (W.W. Willoughby, Citizenship and Allegiance in Constitutional and International
Law, 1 American Journal of International Law, p. 915.).
 The obligations flowing from the relation of a state and its nationals are reciprocal in
character. This principle had been aptly stated by the Supreme Court of the United States in
its opinion in the case of Luria vs. United States:

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

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

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

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

xxx xxx xxx

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

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

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

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

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

Petitioner's thesis on change of sovereignty at the advent of independence on July 4, 1946, is

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

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

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

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

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

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

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

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

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

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

The Japanese, having waged against us an illegal war condemned by prevailing principles of
international law, could not have established in our country any government that can be legally
recognized as de facto. They came as bandits and ruffians, and it is inconceivable that banditry and
ruffianism can claim any duty of allegiance even a temporary one from a decent people.

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

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

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

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

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

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

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

HILADO, J., concurring:

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

I. SUSPENDED ALLEGIANCE.

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

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

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

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

xxx xxx xxx

After the shock to civilization of the war of 1914-1918, however, a marked reversion to the
earlier and sounder doctrines of international law took place. By the time the Nazis came to
power it was thoroughly established that launching an aggressive war or the institution of war
by treachery was illegal and that the defense of legitimate warfare was no longer available to
those who engaged in such an enterprise. It is high time that we act on the juridical principle
that aggressive war-making is illegal and criminal.

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

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

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

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of 1924
for the Pacific Settlement of International Disputes, signed by the representatives of forty-
eight governments, which declared that "a war of aggression constitutes .. an International
crime. . . .

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

xxx xxx xxx

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

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

In the paragraph of said report immediately preceding the one last above mentioned Justice Jackson
says that "international law as taught in the 19th and the early part of the 20th century generally
declared that war-making was not illegal and no crime at law." But, as he says in one of the
paragraphs hereinabove quoted from that report, the Briand-Kellogg Pact constitutes a reversal of
the view-point that all war is legal and has brought international law into harmony with the common
sense of mankind that unjustifiable war is a crime. Then he mentions as other reversals of the
same viewpoint, the Geneva Protocol of 1924 for the Pacific Settlement of International Disputes,
declaring that a war of aggression constitutes an international crime; the 8th assembly of the League
of Nations in 1927, declaring that a war of aggression constitutes an international crime; and the 6th
Pan-American conference of 1928, which unanimously adopted a resolution stating that war of
aggression constitutes an international crime against the human species: which enumeration, he
says, is not an attempt at an exhaustive catalogue.

It is not disputed that the war started by Japan in the Pacific, first, against the United States, and
later, in rapid succession, against other allied nations, was a war of aggression and utterly
unjustifiable. More aggressive still, and more unjustifiable, as admitted on all sides, was its attack
against the Philippines and its consequent invasion and occupation of certain areas thereof.

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

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

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

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

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

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

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

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

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of allegiance. Since the
authority of the occupant is not sovereignty, the inhabitants owe no temporary allegiance to
him. . . . (II Oppenheim, International Law, pp. 341-344.)

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

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

II. CHANGE OF SOVEREIGNTY

Article II, section 1, of the Constitution provides that "Sovereignty resides in the people and all
government authority emanates from them." The Filipino people are the self-same people before and
after Philippine Independence, proclaimed on July 4, 1946. During the life of the Commonwealth
sovereignty resided in them under the Constitution; after the proclamation of independence that
sovereignty remained with them under the very same fundamental law. Article XVIII of the said
Constitution stipulates that the government established thereby shall be known as the
Commonwealth of the Philippines; and that upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine independence, "The
Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines."
Under this provision the Government of the Philippines immediately prior to independence was
essentially to be the identical government thereafter only the name of that government was to be
changed.

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

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

PARAS, J., dissenting:

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

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

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

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

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

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

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

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

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

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

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

In much the same way, we should hold that no treason could have been committed during the
Japanese military occupation against the United States or the Commonwealth Government, because
article 114 of the Revised Penal Code was not then in force. Nor may this penal provision be applied
upon its revival at the time of the reoccupation of the Philippines by virtue of the principle
of postliminium, because of the constitutional inhibition against any ex post facto law and because,
under article 22 of the Revised Penal Code, criminal laws shall have a retroactive effect only in so
far as they favor the accused. Why did we refuse to enforce the Constitution, more essential to
sovereignty than article 114 of the Revised Penal Code in the aforesaid of Peralta vs. Director of
Prisons if, as alleged by the majority, the suspension was good only as to the military occupant?
The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports our position. As
analyzed and described in United States vs. Reiter (27 Fed. Cas., 773), that case "was decided by
the Supreme Court of the United States the court of highest human authority on that subject
and as the decision was against the United States, and in favor of the authority of Great Britain, its
enemy in the war, and was made shortly after the occurrence of the war out of which it grew; and
while no department of this Government was inclined to magnify the rights of Great Britain or
disparage those of its own government, there can be no suspicion of bias in the mind of the court in
favor of the conclusion at which it arrived, and no doubt that the law seemed to the court to warrant
and demand such a decision. That case grew out of the war of 1812, between the United States and
Great Britain. It appeared that in September, 1814, the British forces had taken the port of Castine,
in the State of Maine, and held it in military occupation; and that while it was so held, foreign goods,
by the laws of the United States subject to duty, had been introduced into that port without paying
duties to the United States. At the close of the war the place by treaty restored to the United States,
and after that was done Government of the United States sought to recover from the persons so
introducing the goods there while in possession of the British, the duties to which by the laws of the
United States, they would have been liable. The claim of the United States was that its laws were
properly in force there, although the place was at the time held by the British forces in hostility to the
United States, and the laws, therefore, could not at the time be enforced there; and that a court of
the United States (the power of that government there having since been restored) was bound so to
decide. But this illusion of the prosecuting officer there was dispelled by the court in the most
summary manner. Mr. Justice Story, that great luminary of the American bench, being the organ of
the court in delivering its opinion, said: 'The single question is whether goods imported into Castine
during its occupation by the enemy are liable to the duties imposed by the revenue laws upon goods
imported into the United States.. We are all of opinion that the claim for duties cannot be sustained. .
. . The sovereignty of the United States over the territory was, of course, suspended, and the laws of
the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants
who remained and submitted to the conquerors. By the surrender the inhabitants passed under a
temporary allegiance of the British Government, and were bound by such laws, and such only, as it
chose to recognize and impose. From the nature of the case no other laws could be obligatory upon
them. . . . Castine was therefore, during this period, as far as respected our revenue laws, to be
deemed a foreign port, and goods imported into it by the inhabitants were subjects to such duties
only as the British Government chose to require. Such goods were in no correct sense imported into
the Unites States.' The court then proceeded to say, that the case is the same as if the port of
Castine had been foreign territory, ceded by treaty to the United States, and the goods had been
imported there previous to its cession. In this case they say there would be no pretense to say that
American duties could be demanded; and upon principles of public or municipal law, the cases are
not distinguishable. They add at the conclusion of the opinion: 'The authorities cited at the bar would,
if there were any doubt, be decisive of the question. But we think it too clear to require any aid from
authority.' Does this case leave room for a doubt whether a country held as this was in armed
belligerents occupation, is to be governed by him who holds it, and by him alone? Does it not so
decide in terms as plain as can be stated? It is asserted by the Supreme Court of the United States
with entire unanimity, the great and venerated Marshall presiding, and the erudite and accomplished
Story delivering the opinion of the court, that such is the law, and it is so adjudged in this case. Nay,
more: it is even adjudged that no other laws could be obligatory; that such country, so held, is for the
purpose of the application of the law off its former government to be deemed foreign territory, and
that goods imported there (and by parity of reasoning other acts done there) are in no correct sense
done within the territory of its former sovereign, the United States."

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

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

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

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

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

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

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

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

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

The prohibition in the Hague Conventions (Article 45) against "any pressure on the population to
take oath to the hostile power," was inserted for the moral protection and benefit of the inhabitants,
and does not necessarily carry the implication that the latter continue to be bound to the political
laws of the displaced government. The United States, a signatory to the Hague Conventions, has
made the point clear, by admitting that the military occupant can suspend all the laws of a political
nature and even require public officials and the inhabitants to take an oath of fidelity (United States
Rules of Land Warfare, 1940, article 309), and as already stated, it is a doctrine of American
Constitutional Law that the inhabitants, no longer receiving the protection of their native state, for the
time being owe no allegiance to it, and, being under the control and protection of the victorious
power, owe to that power fealty and obedience. Indeed, what is prohibited is the application of force
by the occupant, from which it is fair to deduce that the Conventions do not altogether outlaw
voluntary submission by the population. The only strong reason for this is undoubtedly the desire of
the authors of the Conventions to give as much freedom and allowance to the inhabitants as are
necessary for their survival. This is wise and humane, because the people should be in a better
position to know what will save them during the military occupation than any exile government.
"Before he was appointed prosecutor, Justice Jackson made a speech in which he warned against
the use of judicial process for non judicial ends, and attacked cynics who "see no reason why courts,
just like other agencies, should not be policy weapons. If we want to shoot Germans as a matter of
policy, let it be done as such, said he, but don't hide the deed behind a court. If you are determined
to execute a man in any case there is no occasion for a trial; the word yields no respect for courts
that are merely organized to convict." Mussoloni may have got his just desserts, but nobody
supposes he got a fair trial. . . . Let us bear that in mind as we go about punishing criminals. There
are enough laws on the books to convict guilty Nazis without risking the prestige of our legal system.
It is far, far better that some guilty men escape than that the idea of law be endangered. In the long
run the idea of law is our best defense against Nazism in all its forms." These passages were taken
from the editorial appearing in the Life, May 28, 1945, page 34, and convey ideas worthy of some
reflection.

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

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

The Commonwealth Government might have been more autonomous than that existing under the
Jones Law, but its non-sovereign status nevertheless remained unaltered; and what was enjoyed
was the exercise of sovereignty over the Philippines continued to be complete.

The exercise of Sovereignty May be Delegated. It has already been seen that the
exercise of sovereignty is conceived of as delegated by a State to the various organs which,
collectively, constitute the Government. For practical political reasons which can be easily
appreciated, it is desirable that the public policies of a State should be formulated and
executed by governmental agencies of its own creation and which are not subject to the
control of other States. There is, however, nothing in a nature of sovereignty or of State life
which prevents one State from entrusting the exercise of certain powers to the governmental
agencies of another State. Theoretically, indeed, a sovereign State may go to any extent in
the delegation of the exercise of its power to the governmental agencies of other States,
those governmental agencies thus becoming quoad hoc parts of the governmental
machinery of the State whose sovereignty is exercised. At the same time these agencies do
 not cease to be Instrumentalities for the expression of the will of the State by which they
were originally created.

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

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

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

This is the situation at the present time. The sovereignty of the United States and the non-
sovereign status of the individual States is no longer contested. (Willoughby, The
Fundamental Concepts of Public Law [1931], pp. 251, 252.)

Article XVIII of the Constitution provides that "The government established by this Constitution shall
be known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the
sovereignty of the United States and the proclamation of Philippine independence, the
Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines."
From this, the deduction is made that the Government under the Republic of the Philippines and
under the Commonwealth is the same. We cannot agree. While the Commonwealth Government
possessed administrative autonomy and exercised the sovereignty delegated by the United States
and did not cease to be an instrumentality of the latter (Willoughby, The Fundamental Concepts of
Public Law [1931], pp. 74, 75), the Republic of the Philippines is an independent State not receiving
its power or sovereignty from the United States. Treason committed against the United States or
against its instrumentality, the Commonwealth Government, which exercised, but did not possess,
sovereignty (id., p. 49), is therefore not treason against the sovereign and independent Republic of
the Philippines. Article XVIII was inserted in order, merely, to make the Constitution applicable to the
Republic.

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

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

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

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

PARAS, J., dissenting:

1English case of De Jager vs. Attorney General of Naval; Belgian case of Auditeur
Militaires vs. Van Dieren; cases of Petain, Laval and Quisling.

G.R. No. 1582 March 28, 1904

THE UNITED STATES, complainant-appellee,

vs.
DALMACIO LAGNASON, defendant-appellant.

Juan Medina Cue for appellant.

Office of the Solicitor-General Araneta for appellee.

WILLARD, J.:

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

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

Article 3, section, of the Constitution of the United States provides as follows:

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

The act of Congress of April 30, 1790 (1 Stat. L., 112), contained the following provision:
 Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That if any person or persons, owing allegiance to the United States
of America, shall levy war against them, or shall adhere to their enemies, giving them aid and
comfort within the United States of elsewhere, and shall be thereof convicted, on confession
in open court, or on the testimony of two witnesses to the same overt act of the treason
whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of
treason against the United States, and shall suffer death.

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

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

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

In the Revised Statutes of the United States these provisions appear in section 5331, 5332, and
5334, which are as follows:

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

SEC. 5332. Every person guilty of treason suffer death; or at the discretion of the court, shall
be imprisoned at hard labor for not less than five years and fined not less than ten thousand
dollars, to be levied on and collected out of any or all of his property, real and personal, of
which he was the owner at the time of committing such treason, any sale or conveyance to
the contrary notwithstanding; and every person so convicted of treason shall, moreover, be
incapable of holding any office under the United States.

SEC. 5334. Every person who incites, sets on foot, assists, or engages in any rebellion or
insurrection against the authority of the United States, or the laws thereof, or gives aid or
comfort thereto, shall be punished by imprisonment for not more than ten years, or by a fine
of not more than ten thousand dollars, or by both of such punishments; and shall, moreover,
be incapable of holding any office under the United States.

Sections 1 and 3 of Act No. 292 of the Philippine Commission are as follows:
 SECTION 1. Every person, resident in the Philippine Islands, owing allegiance to the United
States, or the Government of the Philippine Islands, who levies war against them or adheres
to their enemies, giving them aid and comfort within the Philippine Islands or elsewhere, is
guilty of treason, and, upon conviction, shall suffer death or, at the discretion of the court,
shall be imprisoned at hard labor for not less than five years and fined not less than ten
thousand dollars.

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

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

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

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

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

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

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

If it were not for the provisions of the second section of the act of July 17, 1862, now section 5334 of
the Revised Statutes, and section 3 of Act No. 292 of the Commission, the case at bar would
present no difficulty. The defendant would be clearly guilty of treason and punishable under the first
section of Act No. 292. He was engaged in an attempt to overthrow the Government and was
captured after an armed contest. It matters not how vain and futile his attempt was and how
impossible of accomplishment. The acts performed by him constituted a levying of war. Revised
Statutes, section 5332, declares that treason shall be punished by death, or imprisonment for not
less than five years. Section 5334 declares that one engaging in a rebellion or insurrection against
the United States shall be punished by imprisonment for not more than ten years. As the act of
engaging in a rebellion is levying war, and therefore treason, the same act seems to be punished by
both sections and in different ways.

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

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

Judge Hoffman, who sat with Justice Field, also said:

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

As, then, the offenses described are substantially the same, though a different penalty is
attached to their commission by the sections referred to, it was held by the court, under the
first indictment, which was in terms for treason, that the smaller penalty could alone be
inflicted, that the prisoners could not be capitally punished, and could therefore be admitted
to bail. On the same grounds it was considered that under the present indictment, which
pursues the language of the second section, the offense charged was treason; that both the
offense as described and the overt acts charged amounted to that crime, and that the
accused were entitled to all the privileges secured by the Constitution or allowed by law to
parties on trial for treason; and, this notwithstanding, that in consequence of the legislation
referred to, penalty for treason could not be inflicted. In determining, therefore, whether the
defendants can be convicted under this indictment, it will be proper to consider whether their
acts constitute in law "a levying of war," for an engaging in a rebellion and giving it aid and
comfort amounts to a levying of war; while at the same time we may also inquire whether
their; acts are such as would, if done with regard to a public enemy, constitute an adherence
to him, "giving him aid and comfort."
As said by Justice Grier, in Hanway's case, "treason against the United States is defined by the
Constitution itself. Congress has no power to enlarge, restrain, construe, or define the offense. Its
construction is entrusted to the court alone."

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

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

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

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

In United States vs. Greathouse, Justice Field, speaking of the same phrase, said:

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

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

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

However, in respect to the penalty, it makes no difference whether the offense called rebellion in
section 3 of Act No. 292 in considered an offense different from that of treason defined in section 1,
or whether the decision in the case of Greathouse be allowed and the acts punished by section 3
considered as of the same character as those punished by section 1. In either case the punishment
can not exceed ten years' imprisonment and a fine.

There would be difference in respect to evidence to prove the two crimes. If rebellion and
insurrection are treason, a defendant can not be convicted under section 3 except on the testimony
of two witnesses to the same overt act or by confession in open court. (Act of Congress, March 8,
1902, sec. 9.) If they are not treason he could be convicted upon the testimony required in ordinary
cases. In United States vs. Greathouse the court held that the constitutional provisions as to two
witnesses applied to prosecutions under the second section of the act of 1862 (our sec. 3). It is not
necessary, however, to decide that question in this case, as the overt act of the defendant was
proved by two witnesses; neither is it necessary to decide whether the omission in section 3 of the
phrase "owing allegiance to the United States," which is found in section 1 taken in connection with
section 17 of the act, makes a difference between the two sections in the case at bar the defendant
was a native of Cebu and is therefore covered both by section 1 and section 3.

This court has decided two cases in which treason was charged. In the case of United States vs.
Antonio de los Reyes, February 23, 1904,1 the defendant was acquitted because no overt act of
treason was proved. In the case of United States vs. Magtibay (1 Off. Gaz., 9322) the defendant was
acquitted because there were not two witnesses to the same overt act.

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

Separate Opinions

ARELLANO, C. J., MAPA, JJ., concurs:

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

MCDONOUGH, J.:

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

The case of the United States vs. Greathouse et al. (26 Fed. Cases, 18) does not seem to be in
point. The defendants there were charged with taking part in a rebellion against the Government of
the United States. There was no doubt at all that rebellion did not fall short of actual war and of a
state of war, and so Mr. Justice Field said: "It is not necessary that I should go into any close
definition of the words `levying war,' for it is not sought to apply them to a doubtful case . . . . War of
gigantic proportions is now waged against the United States . . . and all who aid in its prosecution
are guilty of treason."

In the case before us, however, it does not seem necessary to closely define the words "levying
war," for they have been applied in a case that is more than doubtful.

In the Greathouse case the learned judge met with a difficulty when he undertook to so construe the
section of the act of 1862, relating to the punishment for treason, and the section following, defining
the crime of rebellion or insurrection and prescribing the penalty for this latter offense different from
that prescribed for treason; and to justify his conclusions he held that all that Congress intended by
the act of 1862 was to preserve the punishment for treason committed prior to 1862 as it was
prescribed in the act of 1790 "unless," as he stated, "the parties are convicted under the act of
1862 for subsequent offense" and to punish treason thereafter committed with death. It must be
confessed that the language used is not clear, and the conclusion reached as to the construction of
these two sections seems to have been strained to fit the case the before the court.
Long after the civil war Congress caused the United States Statutes to revised, and the sections of
the act of 1862 were changed by omitting that part thereof relating to the liberation of the slaves of
those found guilty of treason, rebellion, or insurrection. That revision is found in sections 5331 and
5332, defining and providing for the punishment of treason, and in section 5334, which defines and
provides for the punishment of rebellion or insurrection. No reference whatever is made in the
revision to the act of 1790, nor can these sections be reasonably construed to mean that treason
committed before this revision, or before 1862, is punishable differently from treason committed after
the revision of the statutes. In case of doubt regarding the proper construction of statutes the courts
frequently refer to the debates of the law-making body when the measure was under discussion.
Judge Field in his opinion made reference to the discussion in the United States Senate when the
act of 1862 was being considered.

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

Since there seems to be now no reason, and since there was no reason at the time Congress
revised the statutes in 1873 and incorporated therein the provisions of the act of 1862 as sections
5331, 5332, 5333, and 5334, for preserving the penalty for treason committed prior to 1862 and
fixing another penalty for a like crime committed thereafter, it may be reasonably held that there is
no such distinction now. To hold that the acts described in section 1 of Act No. 292 of these Islands
constitute treason, and the acts described in section 3 of that act also constitute treason, is to hold
that the law provides contradictory punishments for the same offense; thus the punishment for
treason under the first section may be death or imprisonment for not less than five years and a fine
of not less than $10,000, whereas the punishment under the third section can not be death, and may
be imprisonment for any period less than ten years and for a fine in any sum less than $10,000. It
can not be that the law-making body intended such a contradiction and such an interpretation of this
law. It is much more reasonable to hold what the plain language of the sections indicate as the
debate in the Senate shows that it was the intention of the law-making body to create a crime of a
less degree and of less magnitude than that of levying was against the Government, which new
crime was designated as rebellion or insurrection.

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

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

Mr. Wm. M. Evarts, the distinguished counsel for the Government in those cases, stated:
 War is emphatically a question of actualities. Whenever the situation of opposing hostilities
has assumed the proportions and pursues the methods of war peace is driven out, the
ordinary authority and administration of the law are superseded, and war in fact and by
necessity is the status of the nation, until peace is restored and the laws resume their
dominion.

In the same cases Mr. Justice Grier stated:

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

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

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

It if be desired to have no division line between treason and insurrection, the Commission mar
readily repeal section 3 of Act No. 292. While that section remains as a part of the law, it should be
given considerable in a proper case.

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

JOHNSON, J., dissenting:

The defendant was charged with the crime of treason under section 1 of Act No. 292 of the United
States Philippine Commission. He was tried in the city of Bacolod on the 14th of January, 1903, by
the judge of the Court of First Instance of the Province of Occidental Negros, with several others,
and was found guilty and sentenced to the penalty of death. He appealed to this court. The following
is the statement of facts disclosed by the evidence in this cause:
In the month of October of the year 1902, the municipal president of the town of Murcia, of the
Province of Occidental Negros, in the Philippine Islands, received a letter signed by Dalmacio
Lagnason and others who entitled themselves "generals" of a celebrated band. This band was called
"Babaylanes." This band had existed from time immemorial, and had lived in the mountains in the
southern part of the said province. The band was armed and during the days of the Spanish
Government had frequently attacked the then existing authorities. It had frequently attacked the
provincial government, and on the 29th and 30th of October, 1902, made an attack against the
United States Government, as constituted in the said pueblo of Murcia.

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

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

At 6.30 a. m. of the 30th of October, and in the same place where the party was located the previous
day, it was discovered by the said Constabulary forces. The band retreated until it crossed the
Caliban River, when it opened fire upon the Constabulary and a fight ensued at close range, which
enabled all the members of the band to be seen. The fight lasted approximately an hour and a half.
Two guides of the Constabulary called Tranquilino Toscano and Lazaro Guibon died in consequence
of wounds received from shots from Springfield rifles. Among the members of the band Esteban de
los Reyes, Rufino Rayo, and twenty other members were killed. The band then took fight and was
pursued by the Constabulary forces, which succeeded in capturing the general, Dalmacio Lagnason,
who, during the action was discharging a Springfield rifle at the inspector, Mr. White, and later,
during the same fight, attempted to discharge a revolver at Mr. White, which arms were found upon
his person at the time of his capture. There were also found where the fight took place a small
cannon, various talibones, lances, and two large wooden crosses and various papers. A few days
after the fight Simon Perje and Isidro Oyco were captured in a small shank in the mountains near the
place where the fight took place. One of these was wounded in the thigh and the other in the knee.
They confessed that they were members of the party of Babaylanes under the order of Gen.
Dalmacio Lagnason; that they took a direct part in the action with the Constabulary forces on the
30th of October, in which action they were wounded. Bernardo Talondata, Vidal Artegosa, Valeriano
Talaman, and Luis and Vicente Dimit testified before the president that a few days previous to the
fight between the said band of Babaylanes and the Constabulary, they were in a certain house when
several armed men presented themselves and compelled each of them to join the said band of
Babaylanes under the command of Gen. Dalmacio Lagnason and others; that they had complied
with said request against their will under fear of being maltreated or murdered. They were
subsequently conducted to various points, and finally to the country surrounding the mountains of
Murcia, where, on the 30th day of October, an action took place betweenn the said band and the
Government forces, from which band, during the said fight, they escaped.

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

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

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

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

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

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

A. Yes.

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

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

Q. What was the result of these engagement?

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

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

A. Dalmacio had a Spriengfield rifle, a revolver, and a talibon.

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

A. They were Tranquilino Toscano and Lazaro Quiachon.

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

A. The greater part of Dalmacio's men had black shirts and white pants, and some had
black-peak caps.
Q. Did Dalmacio and his men resist the troops of the Government for some time, or, on
the contrary, did they scatter when the firing commenced?

A. The fight lasted an hour and a half.

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

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

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

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

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

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

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

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

The COURT. Did Dalmacio Lagnason's band carry any flags during said fight?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. Were those who formed Dalmacio's band armed?

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

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

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

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

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

Q. What was the reason of this fight?

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

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

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

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

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

The testimony of Rosalio Teflora is as follows:

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

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

Q. What was the result of said fight?

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

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

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

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

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

The foregoing facts, in my judgement, are sufficient to indicate that the said defendant, with his
associates, intended to overthrow the Government of the United States, as constituted in the said
town of Murcia, in the Province of Occidental Negros, in the Philippines Islands. The defendant was
a resident in the Philippine Islands, and owed allegiance to the United States Government in the
Philippine Islands. His acts, as disclosed by the proof in this case, show clearly that it was not his
intention to oppose the constituted authority in these Islands in the administration of the
Government, but to absolutely overthrow the Government.
Any organized attempt, by force of arms, on the part of persons joined together in a band, who owe
allegiance to the Government, to overthrow and destroy the constituted Government is the levying of
war against that Government. The evidence in this case of the United States vs. Lagnason clearly
shows that the defendant and his band intended to destroy the constituted Government of the United
States in the pueblo of Murcia in these Islands, and is therefore guilty of the crime of treason. No
formal declaration of war is necessary in order that parties shall be guilty of levying war against the
Government. War may exist without a proclamation to that effect. Actual hostilities may determine
the date of the commencement of war, though no proclamation may have been issued, no
declaration made, and no action of the executive or legislative branches of the Government had.
This is recognized by the proclamation of the President William McKinley, issued on the 26th day of
April, 1898, which is as follows:

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

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

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

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

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

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

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

The Commission, in enacting the present law defining treason as rebellion or insurrection, have not
lost sight of these considerations. The fact that the Commission intended to create two crimes
instead of one by sections 1 and 3 of Act No. 292 is further verified by the provisions of section 17 of
said act, which provisions are as follows:

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

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

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

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

COOPER, J., dissenting:

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

The section under which the conviction was made reads as follows:

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

In the decision reached in the case by a majority of the court, distinct views were entertained, the
view held in common being that the defendant is guilty and should be punished with imprisonment
for the term of ten years and a fine of ten thousand dollars. It is said in the majority opinion, delivered
by Justice Willard, that the offense as defined in section 1 of Act No. 292 denominated treason, and
the offense as defined in section 3 of said act denominated as insurrection or rebellion, are of the
same character and that each offense is treason; but that in fixing the penalty, though the indictment
is under section 1 of said act, and the offense of treason as defined therein is punishable by death at
the discretion of the court, yet the penalty prescribed under the third section for the offense of
rebellion and insurrection must be applied, which is imprisonment for not more than ten years and a
fine of not more than $10,000.

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

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

In that case the defendant was on trial charged with the offense of rebellion or insurrection under
section 2 of the act of Congress of July 17, 1862, and not for treason under section 1 of said act.
Prior to the act of Congress of July 17, 1862, several cases had risen involving a construction of the
provision contained in section 3, article 3, Constitution of the United States, and the act of 1790
made under this provision of the Constitution.

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

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

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

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

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

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

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

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

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

It is hard to conceive that in enacting Act No. 292, the Commission had in view the decision in the
Greathouse case, for, as stated, the Philippine Commission was unrestricted in its action to define
treason.
It is also difficult to understand that the Commission intended to punish the offense of treason by
imprisonment for not more than ten years and a fine of not more than ten thousand dollars when the
punishment for treason has in the first section, in express language, been fixed at death, or
imprisonment for not less than five years and a fine of not less than $10,000.

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

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

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

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

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

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

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

What constitutes a "levying of war" has been given a definite meaning by the decision of the
Supreme Court of the United States in the case Ex Parte Bollman (4 Cr., 75), and in the elaborated
opinion delivered by Chief Justice Marshall on a motion to introduce certain evidence on the trial of
Aaron Burr for treason (found in Note B, appendix; 4 Cr.). These decisions have set at rest the
question; they have been referred to in the majority opinion and need not be further considered.

To constitute a levying of war it is not necessary that a state of war should exist in the sense that
armies must be organized and placed in the field; or that the executive branch of the Government
should have called upon the Regular Army for support; or that martial law should have been
proclaimed; or that the courts of the country should be closed and the privileges of the writ of habeas
corpus suspended; or that the civil power should have been rendered powerless to cope with the
uprising; or that hostilities should assume such proportions that the world acknowledges those
engaged in it as belligerents and the contents as that of war, for if the movement has assumed such
proportions as entitle those engaged in it to the rights of belligerency, in modern times those
engaged in it are not generally punished for treason; to punish them all would be equivalent to
extermination.

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

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

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

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

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

TORRES, J., dissenting:

In Act No. 292, passed November 4, 1901, the crimes of treason and rebellion or insurrection are not
defined with proper separation, as they appear in the Penal Code, as offenses of a different
character, each with a separate classification under the penal law.

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

If according to section 1 it is treason to levy war upon the Government of the United States or upon
the Government of these Islands, or adhere to their enemies, giving them aid and comfort within the
Philippine Islands or elsewhere, then acts constituting rebellion or insurrection are also acts of
treason, for to rebel against the sovereignty of the United States or the Government of the Philippine
Islands is to levy war upon them.
Every act of public uprising or of open hostility against the sovereign power and the government of
the country or its agents by a band of rebels, is an act of war, and therefore, although treason and
rebellion are not synonyms in the language of the act in question, it is to be inferred from the text of
sections 1 and 3 that within the crime of treason that of rebellion or insurrection is included as
species is within genus, and that this crime is also of the nature of treason. The fact that the death
penalty is prescribed in the two sections in question is not an obstacle to this view of the law, owing
to the different degree of guilt presumed in each one of the two sections of the act.

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

In the application of penalties, the principle which controls is that of production between the offense
and corresponding penalty prescribed by the law. It is permissible to disregard the rules derived from
this principle, for such an error would be contrary to the dictates of reason.

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

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

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

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

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

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

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

Footnotes

1 Page 349, supra.

2 2 Phil. Rep., 703.

325 U.S. 1 (65 S.Ct. 918, 89 L.Ed. 1441)

CRAMER v. UNITED STATES.
No. 13.
Reargued: Nov. 6, 1944.
Decided: April 23, 1945.

opinion, JACKSON [HTML]

dissent, DOUGLAS, BLACK, REED [HTML]

Mr. Harold R. Medina, of New York City, for petitioner.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.
Argument of Counsel from page 2 intentionally omitted
TOP

Mr. Justice JACKSON delivered the opinion of the Court.

Anthony Cramer, the petitioner, stands convicted of violating Section 1 of
the Criminal Code, which provides: 'Whoever, owing allegiance to the United
States, levies war against them or adheres to their enemies, giving them aid
and comfort within the United States or elsewhere, is guilty of treason.'1
Cramer owed allegiance to the United States. A German by birth, he had
been a resident of the United States since 1925 and was naturalized in 1936.
Prosecution resulted from his association with two of the German saboteurs
who in June 1942 landed on our shores from enemy submarines to disrupt
industry in the United States and whose cases we considered in Ex parte
Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3. One of those, spared from
execution, appeared as a government witness on the trial of Cramer. He
testified that Werner Thiel and Edward Kerling were members of that
sabotage crew, detailed their plot, and described their preparations for its
consummation.
Cramer was conscripted into and served in the German Army against the
United States in 1918. After the war he came to this country, intending to
remain permanently. So far as appears, he has been of good behavior, never
before in trouble with the law. He was studious and intelligent, earning $45
a week for work in a boiler room and living accordingly.
There was no evidence, and the Government makes no claim, that he had
foreknowledge that the saboteurs were coming to this country or that he
came into association with them by prearrangement. Cramer, however, had
known intimately the saboteur Werner Thiel while the latter lived in this
country. They had worked together, roomed together, and jointly had
ventured in a small and luckless delicatessen enterprise. Thiel early and
frankly avowed adherence to the National Socialist movement in Germany;
he foresaw the war and returned in 1941 for the purpose of helping
Germany. Cramer did not do so. How much he sympathized with the
doctrines of the Nazi Party is not clear. He became at one time, in Indiana, a
member and officer of the Friends of New Germany, which was a
predecessor of the Bund. However, he withdrew in 1935 before it became
the Bund. He says there was some swindle about it that he did not like and
also that he did not like their drilling and 'radical activities.' In 1936 he made
a trip to Germany, attended the Olympic Games, and saw some of the
Bundsmen from this country who went there at that time for conferences
with Nazi Party officials. There is no suggestion that Cramer while there had
any such associations. He does not appear to have been regarded as a
person of that consequence. His friends and associates in this country were
largely German. His social life in New York City, where he recently had lived,
seems to have been centered around Kolping House, a German-Catholic
recreational center.
Cramer retained a strong affection for his fatherland. He corresponded in
German with his family and friends there. Before the United States entered
the war he expressed strong sympathy with Germany in its conflict with
other European powers. Before the attack upon Pearl Harbor, Cramer openly
opposed participation by this country in the war against Germany. He
refused to work on war materials. He expressed concern about being drafted
into our army and 'misused' for purposes of 'world conquest.' There is no
proof, however, except for the matter charged in the indictment, of any act
or utterance disloyal to this country after we entered the war.
Coming down to the time of the alleged treason, the main facts, as related
on the witness stand by Cramer, are not seriously in dispute. He was living
in New York and in response to a cryptic note left under his door, which did
not mention Thiel, he went to the Grand Central Station. There Thiel
appeared. Cramer had supposed that Thiel was in Germany, knowing that he
had left the United States shortly before the war to go there. Together they
went to public places and had some drinks. Cramer denies that Thiel
revealed his mission of sabotage. Cramer said to Thiel that he must have
come to America by submarine, but Thiel refused to confirm it, although his
attitude increased Cramer's suspicion. Thiel promised to tell later how he
came to this country. Thiel asked about a girl who was a mutual
acquaintance and whom Thiel had engaged to marry previous to his going to
Germany. Cramer knew where she was, and offered to and did write to her
to come to New York, without disclosing in the letter that Thiel had arrived.
Thiel said that he had in his possession about $3600, but did not disclose
that it was provided by the German Government, saying only that one could
get money in Germany if he had the right connections. Thiel owed Cramer
an old debt of $200. He gave Cramer his money belt containing some
$3600, from which Cramer was to be paid. Cramer agreed to and did place
the rest in his own safe deposit box, except a sum which he kept in his room
in case Thiel should want it quickly.
After the second of these meetings Thiel and Kerling, who was present
briefly at one meeting, were arrested. Cramer's expectation of meeting Thiel
later and of bringing him and his fiancee together was foiled. Shortly
thereafter Cramer was arrested, tried, and found guilty. The trial judge at
the time of sentencing said:
'I shall not impose the maximum penalty of death. It does not appear that
this defendant Cramer was aware that Thiel and Kerling were in possession
of explosives or other means for destroying factories and property in the
United States or planned to do that.
'From the evidence it appears that Cramer had no more guilty knowledge of
any subversive purposes on the part of Thiel or Kerling than a vague idea
that they came here for the purpose of organizing pro-German propaganda
and agitation. If there were any proof that they had confided in him what
their real purposes were, or that he knew, or believed what they really were,
I should not hesitate to impose the death penalty.'
Cramer's case raises questions as to application of the Constitutional
provision that 'Treason against the United States shall consist only in levying
War against them, or in adhering to their Enemies, giving them Aid and
Comfort. No Person shall be convicted of Treason unless on the Testimony of
two Witnesses to the same overt Act, or on Confession in open Court.'2
Cramer's contention may be well stated in words of Judge Learned Hand in
United States v. Robinson:3
'Nevertheless a question may indeed be raised whether the prosecution may
lay as an overt act a step taken in execution of the traitorous design,
innocent in itself, and getting its treasonable character only from some
covert and undeclared intent. It is true that in prosecutions for conspiracy
under our federal statute it is well settled that any step in performance of
the conspiracy is enough, though it is innocent except for its relations to the
agreement. I doubt very much whether that rule has any application to the
case of treason, where the requirement affected the character of the
pleading and proof, rather than accorded a season of repentance before the
crime should be complete. Lord Reading in his charge in Casement's Case
uses language which accords with my understanding:
"Overt acts are such acts as manifest a criminal intention and tend towards
the accomplishment of the criminal object. They are acts by which the
purpose is manifested and the means by which it is intended to be fulfilled."4
The Government, however, contends for, and the court below has affirmed,
this conviction upon a contrary principle.5 It said 'We believe in short that no
more need be laid for an overt act of treason than for an overt act of
conspiracy. * * * Hence we hold the overt acts relied on were sufficient to
be submitted to the jury, even though they perhaps may have appeared as
innocent on their face.' A similar conclusion was reached in United States v.
Fricke;6 it is: 'An overt act in itself may be a perfectly innocent act standing
by itself; it must be in some manner in furtherance of the crime.'
As lower courts thus have taken conflicting positions, or, where the issue
was less clearly drawn, have dealt with the problem ambiguously,7 we
granted certiorari8 and after argument at the October 1943 Term we invited
reargument addressed to specific questions.9 Since our primary question
here is the meaning of the Constitutional provision, we turn to its solution
before considering its application to the facts of this case.
When our forefathers took up the task of forming an independent political
organization for New World society, no one of them appears to have doubted
that to bring into being a new government would originate a new allegiance
for its citizens and inhabitants. Nor were they reluctant to punish as treason
any genuine breach of allegiance, as every government time out of mind had
done. The betrayal of Washington by Arnold was fresh in mind. They were
far more awake to powerful enemies with designs on this continent than
some of the intervening generations have been. England was entrenched in
Canada to the north and Spain had repossessed Florida to the south, and
each had been the scene of invasion of the Colonies; the King of France had
but lately been dispossessed in the Ohio Valley; Spain claimed the
Mississippi Valley; and, except for the seaboard, the settlements were
surrounded by Indiansnot negligible as enemies themselves, and especially
threatening when allied to European foes. The proposed national
government could not for some years become firmly seated in the tradition
or in the habits of the people. There is no evidence that the forefathers
intended to withdraw the treason offense from use as an effective
instrument of the new nation's security against treachery that would aid
external enemies.
The forefathers also had suffered from disloyalty. Success of the Revolution
had been threatened by the adherence of a considerable part of the
population to the King. The Continental Congress adopted a resolution after
a report by its 'Committee on Spies'10 which in effect declared that all
persons residing within any colony owed allegiance to it, and that if any such
persons adhered to the King of Great Britain, giving him aid and comfort,
they were guilty of treason, and which urged the colonies to pass laws for
punishment of such offenders 'as shall be provably attainted of open
deed.'11 Many of the colonies complied, and a variety of laws, mostly
modeled on English law, resulted.12 Some of the legislation in later years
became so broad and loose as to make treason of mere utterance of
opinion.13 Many a citizen in a time of unsettled and shifting loyalties was thus
threatened under English law which made him guilty of treason if he adhered
to the government of his colony and also under colonial law which made him
guilty of treason if he adhered to his King.14 Not a few of these persons were
subjected to confiscation of property or other harsh treatment by the
Revolutionists under local laws; none, however, so far as appears, to capital
punishment.15
Before this revolutionary experience there were scattered treason
prosecutions in the colonies16 usually not well reported. Some colonies had
adopted treason statutes modeled on English legislation.17 But the earlier
colonial experience seems to have been regarded as of a piece with that of
England and appears not to have much influenced the framers in their
dealings with the subject.
However, their experience with treason accusations had been many-sided.
More than a few of them were descendants of those who had fled from
measures against sedition and its ecclesiastic counterpart, heresy. Now the
treason offense was under revision by a Convention whose members almost
to a man had themselves been guilty of treason under any interpretation of
British law.18 They not only had levied war against their King themselves, but
they had conducted a lively exchange of aid and comfort with France, then
England's ancient enemy. Every step in the great work of their lives from the
first mild protests against kingly misrule to the final act of separation had
been taken under the threat of treason charges.19 The Declaration of
Independence may seem cryptic in denouncing George III 'for transporting
us beyond Seas to be tried for pretended offenses' but the specific grievance
was recited by the Continental Congress nearly two years before in saying
that '* * * it has lately been resolved in Parliament, that by force of a
statute, made in the thirty-fifth year of the reign of king Henry the eighth,
colonists may be transported to England, and tried there upon accusations
for treasons, and misprisions, or concealments of treasons committed in the
colonies; and by a late statute, such trials have been directed in cases
therein mentioned.'20
The Convention numbered among its members men familiar with
government in the Old World, and they looked back upon a long history of
use and abuse of the treason charge.21 The English stream of thought
concerning treasons began to flow in fairly definable channels in 1351 with
the enactment of the great Treason Act, 25 Edw. III, Stat. 5, Ch. 2.22 That
was a monumental piece of legislation several times referred to in the
deliberations of the Convention. It cut a bench-mark by which the English-
speaking world tested the level of its thought on the subject23 until our own
abrupt departure from it in 1789, and after 600 years it still is the living law
of treason in England. Roger Casement in 1917 forfeited his life for violating
it.24 We, of course, can make no independent judgment as to the inward
meanings of the terms used in a six-century-old statute, written in a form of
Norman French that had become obsolete long before our Revolution. We
can read this statute only as our forebears read itthrough the eyes of
succeeding generations of English judges, to whom it has been the core of
all decision, and of common-law commentators, to whom it has been the
text.25
Adjudicated cases in English history generally have dealt with the offense of
compassing the monarch's death; only eleven reported English cases
antedating the Constitution are cited as involving distinct charges of
adherence to the King's enemies.26 When constructive treasons were not
joined on the face of the indictment, it is not possible to say how far they
were joined in the minds of the judges. No decision appears to have been a
factor in the deliberations of our own Constitutional Convention. Nor does
any squarely meet our issue here, and for good reasonthe Act of Edward
III did not contain the two-witnesses-to-the-same-overt act requirement
which precipitates the issue here.
Historical materials are, therefore, of little help; necessity as well as desire
taught a concept that differed from all historical models in the drafting of our
treason clause. Treason statutes theretofore had been adapted to a society
in which the state was personified by a king, on whose person were focused
the allegiances and loyalties of the subject. When government was made
representative of the whole body of the governed there was none to say 'I
am the State' and a concept of treason as compassing or imagining a ruler's
death was no longer fitting. Nor can it be gainsaid that the revolutionary
doctrine that the people have the right to alter or abolish their government
relaxed the loyalty which governments theretofore had demanded
dangerously diluted it, as the ruling classes of Europe thought, for in their
eyes the colonists not only committed treason, they exalted it.27 The idea
that loyalty will ultimately be given to a government only so long as it
deserves loyalty and that opposition to its abuses is not treason28 has made
our government tolerant of opposition based on differences of opinion that in
some parts of the world would have kept the hangman busy. But the basic
law of treason in this country was framed by men who, as we have seen,
were taught by experience and by history to fear abuse of the treason
charge almost as much as they feared treason itself. The interplay in the
Convention of their two fears accounts for the problem which faces us today.
We turn then to the proceedings of the Constitutional Convention of 1787 so
far as we have record of them. The plan presented by Pinckney evidently
proposed only that Congress should have exclusive power to declare what
should be treason and misprision of treason against the United States.29 The
Committee on Detail, apparently not specifically instructed on the subject,
reported a draft Constitution which left no such latitude to create new
treasons. It provided that: 'Treason against the United States shall consist
only in levying war against the United States, or any of them; and in
adhering to the enemies of the United States, or any of them. The
Legislature of the United States shall have power to declare the punishment
of treason. No person shall be convicted of treason, unless on the testimony
of two witnesses. No attainder of treason shall work corruption of bloods,
nor forfeiture, except during the life of the person attained.'30
This clause was discussed on August 20, 1787. Mr. Madison, who opened the
discussion, 'thought the definition too narrow. It did not appear to go as far
as the Stat. of Edwd III. He did not see why more latitude might not be left
to the Legislature. It wd. be as safe in the hands of State legislatures; and it
was inconvenient to bar a discretion which experience might enlighten, and
which might be applied to good purposes as well as be abused.'31 Mr. Mason
was in favor of following the language of the Statute of Edward III. The
discussion shows some confusion as to the effect of adding the words 'giving
them aid and comfort,' some thinking their effect restrictive and others that
they gave a more extensive meaning. However, 'Col Mason moved to insert
the words 'giving (them) aid comfort', as restrictive of 'adhering to their
Enemies, &c'the latter he thought would be otherwise too indefinite.' The
motion prevailed.
Mr. Dickenson 'wished to know what was meant by the 'testimony of two
witnesses', whether they were to be witnesses to the same overt act or to
different overt acts. He thought also that proof of an overt-act ought to be
expressed as essential to the case.' Doctor Johnson also 'considered * * *
that something should be inserted in the definition concerning overt acts.'
When it was moved to insert 'to the same overt act' after the two-witnesses
requirement, Madison notes that 'Doc'r. Franklin wished this amendment to
take placeprosecutions for treason were generally virulent; and perjury too
easily made use of against innocence.' James Wilson observed that 'Much
may be said on both sides. Treason may sometimes be practiced in such a
manner, as to render proof extremely difficultas in a traitorous
correspondence with an Enemy.'32 But the motion carried.
By this sequence of proposals the treason clause of the Constitution took its
present form. The temper and attitude of the Convention toward treason
prosecutions is unmistakable. It adopted every limitation that the practice of
governments had evolved or that politico-legal philosophy to that time had
advanced.33 Limitation of the treason of adherence to the enemy to cases
where aid and comfort were given and the requirement of an overt act were
both found in the Statute of Edward III praised in the writings of Coke and
Blackstone, and advocated in Montesquieu's Spirit of Laws. Likewise, the
two-witness requirement had been used in other statutes,34 was advocated
by Montesquieu in all capital cases,35 and was a familiar precept of the New
Testament,36 and of Mosaic law.37 The framers combined all of these known
protections and added two of their own which had no precedent. They wrote
into the organic act of the new government a prohibition of legislative or
judicial creation of new treasons. And a venerable safeguard against false
testimony was given a novel application by requiring two witnesses to the
same overt act.
District of treason prosecutions was not just a transient mood of the
Revolutionists. In the century and a half of our national existence not one
execution on a federal treason conviction has taken place. Never before has
this Court had occasion to review a conviction. In the few cases that have
been prosecuted the treason clause has had its only judicial construction by
individual Justices of this Court presiding at trials on circuit or by district or
circuit judges.38 After constitutional requirements have been satisfied, and
after juries have convicted and courts have sentenced, Presidents again and
again have intervened to mitigate judicial severity or to pardon entirely. We
have managed to do without treason prosecutions to a degree that probably
would be impossible except while a people was singularly confident of
external security and internal stability.39
Historical materials aid interpretation chiefly in that they show two kinds of
dangers against which the framers were concerned to guard the treason
offense: (1) Perversion by established authority to repress peaceful political
opposition; and (2) conviction of the innocent as a result of perjury, passion,
or inadequate evidence. The first danger could be diminished by closely
circumscribing the kind of conduct which should be treason making the
constitutional definition exclusive, making it clear, and making the offense
one not susceptible of being inferred from all sorts of insubordinations. The
second danger lay in the manner of trial and was one which would be
diminished mainly by procedural requirementsmainly but not wholly, for
the hazards of trial also would be diminished by confining the treason
offense to kinds of conduct susceptible of reasonably sure proof. The
concern uppermost in the framers' minds, that mere mental attitudes or
expressions should not be treason, influenced both definition of the crime
and procedure for its trial. In the proposed Constitution the first sentence of
the treason article undertook to define the offense; the second, to surround
its trial with procedural safeguards.
'Compassing' and like loose concepts of the substance of the offense had
been useful tools for tyranny. So one of the obvious things to be put into the
definition of treason not consisting of actual levying of war was that it must
consist of doing something. This the draft Constitution failed to provide, for,
as we have pointed out, it defined treason40 as merely 'adhering to the
enemies of the United States, or any of them.'
Treason of adherence to an enemy was old in the law. It consisted of
breaking allegiance to one's own King by forming an attachment to his
enemy. Its scope was comprehensive, its requirements indeterminate. It
might be predicated on intellecutal or emotional sympathy with the for, or
merely lack of zeal in the cause of one's own country. That was not the kind
of disloyalty the framers thought should constitute treason. They promptly
accepted the proposal to restrict it to cases where also there was conduct
which was 'giving them aid and comfort.'
'Aid and comfort' was defined by Lord Reading in the Casement trial
comprehensively, as it should be, and yet probably with as much precision
as the nature of the matter will permit: '* * * an act which strengthens or
tends to strengthen the enemies of the King in the conduct of a war against
the King, that is in law the giving of aid and comfort' and 'an act which
weakens or tends to weaken the power of the King and of the country to
resist or to attack the enemies of the King and the country * * * is * * *
giving of aid and comfort.' Lord Reading explained it, as we think one must,
in terms of an 'act.' It is not easy, if indeed possible, to think of a way in
which 'aid and comfort' and be 'given' to an enemy except by some kind of
action. Its very nature partakes of a deed or physical activity as opposed to
a mental operation.
Thus the crime of treason consists of two elements: adherence to the
enemy; and rendering him aid and comfort. A citizen intellectually or
emotionally may favor the enemy and harbor sympathies or convictions
disloyal to this country's policy or interest, but so long as he commits no act
of aid and comfort to the enemy, there is no treason. On the other hand, a
citizen may take actions, which do aid and comfort the enemymaking a
speech critical of the government or opposing its measures, profiteering,
striking in defense plants or essential work, and the hundred other things
which impair our cohesion and diminish our strength but if there is no
adherence to the enemy in this, if there is no intent to betray, there is no
treason.
Having thus by definition made treason consist of something outward and
visible and capable of direct proof, the framers turned to safeguarding
procedures of trial and ordained that 'No Person shall be convicted of
Treason unless on the Testimony of two Witnesses to the same overt Act, or
on Confession in open Court.' This repeats in procedural terms the concept
that thoughts and attitudes alone cannot make a treason. It need not
trouble us that we find so dominant a purpose emphasized in two different
ways. But does the procedural requirement add some limitation not already
present in the definition of the crime, and if so, what? While to prove giving
of aid and comfort would require the prosecution to show actions and deeds,
if the Constitution stopped there, such acts could be inferred from
circumstantial evidence. This the framers thought would not do.41 So they
added what in effect is a command that the overt acts must be established
by direct evidence, and the direct testimony must be that of two witnesses
instead of one. In this sense the overt act procedural provision adds
something, and something important, to the definition.
Our problem begins where the Constitution ends. That instrument omits to
specify what relation the indispensable overt act must sustain to the two
elements of the offense as defined: viz., adherence and giving aid and
comfort. It requires that two witnesses testify to the same overt act, and
clearly enough the act must show something toward treason, but what?
Must the act be one of giving aid and comfort? If so, how must adherence to
the enemy, the disloyal state of mind, be shown?
The defendant especially challenges the sufficiency of the overt acts to prove
treasonable intention. Questions of intent in a treason case are even more
complicated than in most criminal cases because of the peculiarity of the two
different elements which together make the offense. Of course the overt acts
of aid and comfort must be intentional as distinguished from merely
negligent or undesigned ones. Intent in that limited sense is not in issue
here. But to make treason the defendant not only must intend the act, but
he must intend to betray his country by means of the act. It is here that
Cramer defends. The issue is joined between conflicting theories as to how
this treacherous intention and treasonable purpose must be made to appear.
Bearing in mind that the constitutional requirement in effect in one of direct
rather than circumstantial evidence, we must give it a reasonable effect in
the light of its purpose both to preserve the offense and to protect citizens
from its abuse. What is designed in the mind of an accused never is
susceptible of proof by direct testimony. If we were to hold that the disloyal
and treacherous intention must be proved by the direct testimony of two
witnesses, it would be to hold that it is never provable. It seems obvious
that adherence to the enemy, in the sense of a disloyal state of mind, cannot
be, and is not required to be, proved by deposition of two witnesses.
Since intent must be inferred from conduct of some sort, we think it is
permissible to draw usual reasonable inferences as to intent from the overt
acts. The law of treason, like the law of lesser crimes, assumes every man to
intend the natural consequences which one standing in his circumstances
and possessing his knowledge would reasonably expect to result from his
acts. Proof that a citizen did give aid and comfort to an enemy may well be
in the circumstances sufficient evidence that he adhered to that enemy and
intended and purposed to strike at his own country.42 It may be doubted
whether it would be what the founders intended, or whether it would well
serve any of the ends they cherished, to hold the treason offense available
to punish only those who make their treacherous intentions more evident
than may be done by rendering aid and comfort to an enemy. Treason
insidious and dangerous treasonis the work of the shrewd and crafty more
often than of the simple and impulsive.
While of course it must be proved that the accused acted with an intention
and purpose to betray or there is no treason, we think that in some
circumstances at least the overt act itself will be evidence of the treasonable
purpose and intent. But that still leaves us with exceedingly difficult
problems. How decisively must treacherous intention be made manifest in
the act itself? Will a scintilla of evidenc of traitorous intent suffice? Or must it
be sufficient to convince beyond reasonable doubt? Or need it show only that
treasonable intent was more probable than not? Must the overt act be
appraised for legal sufficiency only as supported by the testimony of two
witnesses, or may other evidence be thrown into the scales to create
inferences not otherwise reasonably to be drawn or to reinforce those which
might be drawn from the act itself?
It is only overt acts by the accused which the Constitution explicitly requires
to be proved by the testimony of two witnesses. It does not make other
common-law evidence inadmissible nor deny its inherent powers of
persuasion. It does not forbid judging by the usual process by which the
significance of conduct often will be determined by facts which are not acts.
Actions of the accused are set in time and place in many relationships.
Environment illuminates the meaning of acts, as context does that of words.
What a man is up to may be clear from considering his bare acts by
themselves; often it is made clear when we know the reciprocity and
sequence of his acts with those of others, the interchange between him and
another, the give and take of the situation.
It would be no contribution to certainty of judgment, which is the object of
the provision, to construe it to deprive a trial court of the aid of testimony
under the ordinary sanctions of verity, provided, of course, resort is not had
to evidence of less than the constitutional standard to supply deficiencies in
the constitutional measure of proof of overt acts. For it must be remembered
that the constitutional provision establishes a minimum of proof of
incriminating acts, without which there can be no conviction, but it is not
otherwise a limitation on the evidence with which a jury may be persuaded
that it ought to convict. The Constitution does not exclude or set up
standards to test evidence which will show the relevant acts of persons other
than the accused or their identity or enemy character or other surrounding
circumstances. Nor does it preclude any proper evidence, of non-
incriminating facts about a defendant, such for example as his nationality,
naturalization, and residence.
From duly proven overt acts of aid and comfort to the enemy in their setting,
it may well be that the natural and reasonable inference of intention to
betray will be warranted. The two-witness evidence of the acts accused,
together with commonlaw evidence of acts of others and of facts which are
not acts, will help to determine which among possible inferences as to the
actor's knowledge, motivation, or intent are the true ones. But the
protection of the two-witness rule extends at least to all acts of the
defendant which are used to draw incriminating inferences that aid and
comfort have been given.
The controversy before us has been waged in terms of intentions, but this,
we think, is the reflection of a more fundamental issue as to what is the real
function of the overt act in convicting of treason. The prisoner's contention
that it alone and on its face must manifest a traitorous intention, apart from
an intention to do the act itself, would place on the overt act the whole
burden of establishing a complete treason. On the other hand, the
Government's contention that it may prove by two witnesses an apparently
commonplace and insignificant act and from other circumstances create an
inference that the act was a step in treason and was done with treasonable
intent really is a contention that the function of the overt act in a treason
prosecution is almost zero. It is obvious that the function we ascribe to the
overt act is significant chiefly because it measures the two-witness rule
protection to the accused and its handicap to the prosecution. If the over act
or acts must go all the way to make out the complete treason, the defendant
is protected at all points by the two-witness requirement. If the act may be
an insignificant one, then the constitutional safeguards are shrunk en so as
to be applicable only at a point where they are least needed.
The very minimum function that an overt act43 must perform in a treason
prosecution is that it show sufficient action by the accused, in its setting, to
sustain a finding that the accused actually gave44 aid and comfort to the
enemy. Every act, movement, deed, and word of the defendant charged to
constitute treason must be supported by the testimony of two witnesses.
The two-witness principle is to interdict imputation of incriminating acts to
the accused by circumstantial evidence or by the testimony of a single
witness. The prosecution cannot rely on evidence which does not meet the
constitutional test for overt acts to create any inference that the accused did
other acts or did something more than was shown in the overt act, in order
to make a giving of aid and comfort to the enemy. The words of the
Constitution were chosen, not to make it hard to prove merely routine and
everyday acts, but to make the proof of acts that convict of treason as sure
as trial processes may. When the prosecution's case is thus established, the
Constitution does not prevent presentation of corroborative or cumulative
evidence of any admissible character either to strengthen a direct case or to
rebut the testimony or inferences on behalf of defendant. The Government is
not prevented from making a strong case; it is denied a conviction on a
weak one.
It may be that in some cases the overt acts, sufficient to prove giving of aid
and comfort, will fall short of showing intent to betray and that questions will
then be raised as to permissible methods of proof that we do not reach in
this case. But in this and some cases we have cited where the sufficiency of
the overt acts has been challenged because they were colorless as to intent,
we are persuaded the reason intent was left in question was that the acts
were really indecisive as a giving of aid and comfort. When we deal with acts
that are trivial and commonplace and hence are doubtful as to whether they
gave aid and comfort to the enemy, we are most put to it to find in other
evidence a treacherous intent.
We proceed to consider the application of these principles to Cramer's case.
The indictment charged Cramer with adhering to the enemies of the United
States, giving them aid and comfort, and set forth ten overt acts. The
prosecution withdrew seven, and three were submitted to the jury. The overt
acts which present the principal issue45 are alleged in the following language:
'1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the
Southern District of New York and within the jurisdiction of this Court, did
meet with Werner Thiel and Edward John Kerling, enemies of the United
States, at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the
City and State of New York, and did confer, treat, and counsel with said
Werner Thiel and Edward John Kerling for a period of time for the purpose of
giving and with intent to give aid and comfort to said enemies, Werner Thiel
and Edward John Kerling.
'2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the
Southern District of New York and within the jurisdiction of this Court, did
accompany, confer, treat, and counsel with Werner Thiel, an enemy of the
United States, for a period of time at the Twin Oaks Inn at Lexington Avenue
and 44th Street, and at Thompson's Cafeteria on 42nd Street between
Lexington and Vanderbilt Avenues, both in the City and State of New York,
for the purpose of giving and with intent to give aid and comfort to said
enemy, Werner Thiel.'
At the present stage of the case we need not weight their sufficiency as a
matter of pleading. Whatever the averments might have permitted the
Government to prove, we now consider their adequacy on the proof as
made.
It appeared upon the trial that at all times involved in these acts Kerling and
Thiel were under surveiliance of the Federal Bureau of Investigation. By
direct testimony of two or more agents it was established that Cramer met
Thiel and Kerling on the occasions and at the places charged and that they
drank together and engaged long and earnestly in conversation. This is the
sum of the overt acts as established by the testimony of two witnesses.
There is no two-witness proof of what they said nor in what language they
conversed. There is no showing that Cramer gave them any information
whatever of value to their mission or indeed that he had any to give. No
effort at secrecy is shown, for they met in public places. Cramer furnished
them no shelter, nothing that can be called sustance or supplies, and there
is no evidence that he gave them encouragement or counsel, or even paid
for their drinks.
The Government recognizes the weakness of its proof of aid and comfort,
but on this scope it urges: 'Little imagination is required to perceive the
advantage such meeting would afford to enemy spies not yet detected. Even
apart from the psychological comfort which the meetings furnished Thiel and
Kerling by way of social intercourse with one who they were confident would
not report them to the authorities, as a loyal citizen should, the meetings
gave them a source of information and an avenue for contact. It enabled
them to be seen in public with a citizen above suspicion and thereby to be
mingling normally with the citizens of the country with which they were at
war.' The difficulty with this argument is that the whole purpose of the
constitutional provision is to make sure that treason conviction shall rest on
direct proof of two witnesses and not on even a little imagination. And
without the use of some imagination it is difficult to perceive any advantage
which this meeting afforded to Thiel and Kerling as enemies or how it
strengthened Germany or weakened the United States in any way whatever.
It may be true that the saboteurs were cultivating cramer as a potential
'source of information and an avenue for contact.' But there is no proof
either by two witnesses or by even one witness or by any circumstance that
Cramer gave them information or established any 'contact' for them with
any person other than an attempt to bring about a rendezvous between
Thiel and a girl, or that being 'seen in public with a citizen above suspicion'
was of any assistance to the enemy. Meeting with Cramer in public drinking
places to tipple and trifle was no part of the saboteurs' mission and did not
advance it. It may well have been a digression which jeopardized its
success.
The shortcomings of the overt act submitted are emphasized by contrast
with others which the indictment charged but which the prosecution
withdrew for admitted insufficiency of proof. It appears that Cramer took
from Thiel for safekeeping a money belt containing about $3,600, some
$160 of which he held in his room concealed in books for Thiel's use as
needed. An old indebtedness of Thiel to Cramer of $200 was paid from the
fund, and the rest Cramer put in his safe-deposit box in a bank for
safekeeping. All of this was at Thiel's request. That Thiel would be aided by
having the security of a safe-deposit box for his funds, plus availability of
smaller amounts, and by being relieved of the risks of carrying large sums
on his personwithout disclosing his presence or identity to a bankseems
obvious. The inference of intent from such act is also very different from the
intent manifest by drinking and talking together. Taking what must have
seemed a large sum of money for safekeeping is not a usual amenity of
social intercourse. That such responsibilities are undertaken and such trust
bestowed without the scratch of a pen to show it, implies some degree of
mutuality and concert from which a jury could say that aid and comfort was
given and was intended. If these acts had been submitted as overt acts of
treason, and we were now required to decide whether they had been
established as required, we would have a quite different case. We would
then have to decide whether statements on the witness stand by the
defendant are either 'confession in open court' or may be counted as the
testimony of one of the required two witnesses to make out otherwise
insufficiently proved 'overt acts.' But this transaction was not proven as the
Government evidently hoped to do when the indictment was obtained. The
overt acts based on it were expressly withdrawn from the jury, and Cramer
has not been convicted of treason on account of such acts. We cannot
sustain a conviction for the acts submitted on the theory that, even if
insufficient, some unsubmitted ones may be resorted to as proof of treason.
Evidence of the money transaction serves only to show how much went out
of the case when it was withdrawn.
The Government contends that outside of the overt acts, and by lesser
degree of proof, it has shown a treasonable intent on Cramer's part in
meeting and talking with Thiel and Kerling. But if it showed him disposed to
betray, and showed that he had opportunity to do so, it still has not proved
in the manner required that he did any acts submitted to the jury as a basis
for conviction which had the effect of betraying by giving aid and comfort. To
take the intent for the deed would carry us back to constructive treasons.
It is outside of the commonplace overt acts as proved that we must find all
that convicts or convinces either that Cramer gave aid and comfort or that
he had a traitorous intention. The prosecution relied chiefly upon the
testimony of Norma Kopp, the fiancee of Thiel, as to incriminating
statements made by Cramer to her,46 upon admissions made by Cramer after
his arrest to agents of the Federal Bureau of Investigation,47 upon letters and
documents found on search of his room by permission after his arrest,48 and
upon testimony that Cramer had curtly refused to buy Government
bonds.49 After denial of defendant's motion to dismiss at the close of the
prosecution's case, defendant became a witness in his own behalf and the
Government obtained on cross-examination some admissions of which it had
the benefit on submission.50
It is not relevant to our issue to appraise weight or credibility of the
evidence apart from determining its constitutional sufficiency. Nor is it
necessary in the view we take of the more fundamental issues, to discuss
the reservations which all of us entertain as to the admissibility of some of it
or those which some entertain as to other of it. We could conclude in favor
of affirmance only if all questions of admissibility were resolved against the
prisoner. At all events much of the evidence is of the general character
whose infirmities were feared by the framers and sought to be safeguarded
against.
Most damaging is the testimony of Norma Kopp, a friend of Cramer's and
one with whom, if she is to be believed, he had been most indiscreetly
confidential. Her testimony went considerably beyond that of the agents of
the Federal Bureau of Investigation as to admissions of guilty knowledge of
Thiel's hostile mission and of Cramer's sympathy with it. To the extent that
his conviction rests upon such evidence, and it does to an unknown but
considerable extent, it rests upon the uncorroborated testimony of one
witness not without strong emotional interest in the drama of which
Cramer's trial was a part. Other evidence relates statements by Cramer
before the United States was at war with Germany. At the time they were
uttered, however, they were not treasonable. To use pre-war expressions of
opposition to entering a war to convict of treason during the war is a
dangerous procedure at best. The same may be said about the inference of
disloyal attitude created by showing that he refused to buy bonds and closed
the door in the salesman's face. Another class of evidence consists of
admissions to agents of the Federal Bureau of Investigation. They are of
course, not 'confession in open court.' The Government does not contend
and could not well contend that admissions made out of court, if otherwise
admissible, can supply a deficiency in proof of the overt act itself.
The Government has urged that our initial interpretation of the treason
clause should be less exacting, lest treason be too hard to prove and the
Government disabled from adequately combating the techniques of modern
warfare. But the treason offense is not the only nor can it well serve as the
principal legal weapon to vindicate our national cohesion and security. In
debating this provision, Rufus King observed to the Convention that the
'controversy relating to Treason might be of less magnitude than was
supposed; as the legislature might punish capitally under other names than
Treason.'51 His statement holds good today. Of course we do not intimate
that Congress could dispense with the two-witness rule merely by giving the
same offense another name. But the power of Congress is in no way limited
to enact prohibitions of specified acts thought detrimental to our wartime
safety. The loyal and the disloyal alike may be forbidden to do acts which
place our security in peril, and the trial thereof may be focussed upon
defendant's specific intent to do those particular acts52 thus eliminating the
accusation of treachery and of general intent to betray which have such
passion-rousing potentialities. Congress repeatedly has enacted prohibitions
of specific acts thought to endanger our security53 and the practice of foreign
nations with defense problems more acute than our own affords examples of
others.54
The framers' effort to compress into two sentences the law of one of the
most intricate of crimes gives a superficial appearance of clarity and
simplicity which proves illusory when it is put to practical application. There
are few subjects on which the temptation to utter abstract interpretative
generalizations is greater or on which they are more to be distrusted. The
little clause is packed with controversy and difficulty. The offense is one of
subtlety, and it is easy to demonstrate lack of logic in almost any
interpretation by hypothetical cases, to which real treasons rarely will
conform. The protection of the two-witness requirement, limited as it is to
overt acts, may be wholly unrelated to the real controversial factors in a
case. We would be understood as speaking only in the light of the facts and
of the issues raised in the case under consideration, although that leaves
many undetermined grounds of dispute which, after the method of the
common law, we may defer until they are presented by facts which may
throw greater light on their significance. Although nothing in the conduct of
Cramer's trial evokes it, a repetition of Chief Justice Marshall's warning can
never be untimely:
'As there is no crime which can more excite and agitate the passions of men
than treason, no charge demands more from the tribunal before which it is
made, a deliberate and temperate inquiry. Whether this inquiry be directed
to the fact or to the law, none can be more, solemn, none more important to
the citizen or to the government; none can more affect the safety of both. *
* * It is therefore more safe as well as more consonant to the principles of
our constitution, that the crime of treason should not be extended by
construction to doubtful cases; and that crimes not clearly within the
constitutional definition, should receive such punishment as the legislature in
its wisdom may provide.' Ex parte Bollman, 4 Cranch 75, 125, 127, 2 L.Ed.
554.
It is not difficult to find grounds upon which to quarrel with this
Constitutional provision. Perhaps the framers placed rather more reliance on
direct testimony than modern researches in psychology warrant. Or it may
be considered that such a quantitative measure of proof, such a mechanical
calibration of evidence is a crude device at best or that its protection of
innocence is too fortuitous to warrant so unselective an obstacle to
conviction. Certainly the treason rule, whether wisely or not, is severely
restrictive. It must be remembered, however, that the Constitutional
Convention was warned by James Wilson that 'Treason may sometimes be
practiced in such a manner, as to render proof extremely difficultas in a
traitorous correspondence with an Enemy.'55 The provision was adopted not
merely in spite of the difficulties it put in the way of prosecution but because
of them. And it was not by whim or by accident, but because one of the
most venerated of that venerated group considered that 'prosecutions for
treason were generally virulent.' Time has not made the accusation of
treachery less poisonous, nor the task of judging one charged with betraying
the country, including his triers, less susceptible to the influence of suspicion
and rancor. The innovations made by the forefathers in the law of treason
were conceived in a faith such as Paine put in the maxim that 'He that would
make his own liberty secure must guard even his enemy from oppression;
for if he violates this duty he establishes a precedent that will reach
himself.'56 We still put trust in it.
We hold that overt acts 1 and 2 are insufficient as proved to support the
judgment of conviction, which accordingly is
Reversed.
TOP

Mr. Justice DOUGLAS, with whom the CHIEF JUSTICE, Mr. Justice BLACK and
Mr. Justice REED concur, dissenting.
The opinion of the Court is written on a hypothetical state of facts, not on
the facts presented by the record. It states a rule of law based on an
interpretation of the Constitution which is not only untenable but is also
unnecessary for the decision. It disregards facts essential to a determination
of the question presented for decision. It overlooks the basis issue on which
our disposition of the case must turn. In order to reach that issue we must
have a more exact appreciation of the facts than can be gleaned from the
opinion of the Court.
Cramer is a naturalized citizen of the United States, born in Germany. He
served in the German army in the last war, coming to this country in 1925.
In 1929 he met Thiel who had come to this country in 1927 from a place in
Germany not far from petitioner's birthplace. The two became close friends;
they were intimate associates during a twelve-year period. In 1933 Cramer
found work in Indiana. Thiel joined him there. Both became members of the
Friends of New Germany, predecessor of the German-American Bund.
Cramer was an officer of the Indiana local. He resigned in 1935 but Thiel
remained a member and was known as a zealous Nazi. In 1936 Cramer
visited Germany. On his return he received his final citizenship papers. He
and Thiel returned to New York in 1937 and lived either together or in close
proximity for about four years. Thiel left for Germany in the spring of 1941,
feeling that war between the United States and Germany was imminent.
According to Cramer, Thiel was 'up to his ears' is Nazi ideology. Cramer
corresponded with Thiel in Germany. Prior to our declaration of war, he was
sympathetic with the German cause and critical of our attitude. Thus in
November, 1941, he wrote Thiel saying he had declined a job in Detroit 'as I
don't was to dirty my fingers with war material'; that 'We sit here in pitiable
comfort, when we should be in the battleas Nietzsche saysI want the
man, I want the woman, the one fit for war, the other fit for bearing.' In the
spring of 1942 he wrote another friend in reference to the possibility of being
drafted: 'Personally I should not care at all to be misused by the American
army as a world conqueror.' Cramer listened to short-wave broadcasts of
Lord Haw-Haw and other German propagandists. He knew that the theme of
German propaganda was that England and the United States were fighting a
war of aggression and seeking to conquer the world.
So much for the background. What followed is a sequel to Ex parte
Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3.
Thiel entered the German army and in 1942 volunteered with seven other
German soldiers who had lived in the United States for a special mission to
destroy the American aluminum industry. They were brought here by
German submarines in two groups. Kerling was the leader and Thiel a
member of one group which landed by rubber boat near Jacksonville, Florida
on June 17, 1942. They buried their explosives and proceeded to New York
City, where on June 21st they registered at the Hotel Commodore under the
assumed names of Edward Kelly and William Thomas.
The next morning a strange voice called Cramer's name from the hall of the
rooming house where he lived. On his failure to reply an unsigned note was
slipped under his door. It read, 'Be at the Grand Central station tonight at 8
o'clock, the upper platform near the information booth, Franz from Chicago
has come into town and wants to see you; don't fail to be there.' Cramer
said he knew no Franz from Chicago. But nevertheless he was on hand at
the appointed hour and place. Thiel shortly appeared. They went to the Twin
Oaks Inn where they talked for two hours. Cramer admitted that he knew
Thiel had come from Germany; and of course, he knew that at that time
men were not freely entering this country from Germany. He asked Thiel,
'Say, how have you come over, have you come by submarine?' Thiel looked
startled, smiled, and said, 'Some other time I am going to tell you all about
this.' Thiel told him that he had taken the assumed name of William Thomas
and had a forged draft card. Thiel admonished him to remember that he,
Thiel, was 'anti-Nazi'a statement Cramer doubted because he knew Thiel
was a member of the Nazi party. thiel indicated he had come from the coast
of Florida. Cramer inquired if he had used a rubber boat. When Thiel said
that the only time he was 'scared to death was when I came over here we
got bombed,' Cramer replied, 'Then you have come over by submarine,
haven't you?' Thiel told Cramer that he had 'three and a half or four
thousand dollars' with him and that 'if you have the right kind of connection
you can even get dollars in Germany.' Cramer offered to keep Thiel's money
for him. Thiel agreed but nothing was done about it that evening. Cramer
admitted he had a 'hunch' that Thiel was here on a mission for the German
government. He asked Thiel 'whether he had come over here to spread
rumors and incite unrest.' Cramer after his arrest told agents of the F.B.I.
that he had suspected that Thiel had received the money from the German
government, that Thiel in fact had told him that he was on a mission for
Germany, and that 'whatever his mission was, I thought that he was serious
in his undertaking.' Thiel from the beginning clothed his actions with
secrecy; was unwilling to be seen at Cramer's room ('because I have too
many acquaintances there and I don't want them to see me'); and cautioned
Cramer against conversing loudly with him in the public tavern.
So they agreed to meet at the Twin Oaks Inn at 8 P.M. on the following
evening, June 23, 1942. At this meeting Kerling joined them. Cramer had
met Kerling in this country and knew he had returned to Germany. Kerling
and Thiel told Cramer that they had come over together. Cramer had a
'hunch' that Kerling was here for the same purpose as Thiel. Kerling left
Thiel and Cramer after about an hour and a half. Kerling was followed and
arrested. Cramer and Thiel stayed on at the tavern for about another hour.
After Kerling left, Thiel agreed to entrust his money to Cramer for
safekeeping. He told Cramer to take out $200 which Thiel owed him. But he
asked Cramer not to put all of the balance in the safe deposit boxthat he
should keep some of it out 'in the event I need it in a hurry.' Thiel went to
the washroom to remove the money belt. He handed it to Cramer on the
street when they left the tavern. From the Twin Oaks Thiel and Cramer went
to Thompson's Cafeteria where they conversed for about fifteen minutes.
They agreed to meet there at 8 P.M. on June 25th. They parted. Thiel was
followed and arrested.
Cramer returned home. He put Thiel's money belt in a shoe box. He put
some of the money between the pages of a book. Later he put the balance in
his bank, some in a savings account, most of it in his safe deposit box. He
and Thiel had talked of Thiel's fiance e, Norma Kopp. At the first meeting
Cramer had offered to write her on Thiel's behalf. He did so. He did not
mention Thiel's name but asked her to come to his room, saying he had
'sensational' news for her. Cramer appeared at Thompson's Cafeteria at 8 P.
M. June 25th to keep his appointment with Thiel. He waited about an hour
and a half. He returned the next night, June 26th, and definitely suspected
Thiel had been arrested. Though he knew Thiel was registered at the Hotel
Commodore, he made no attempt to get in touch with him there. When he
returned to his room that night, Norma Kopp was waiting for him. She
testified that he told her that Thiel was here; that 'they came about six men
with a U-boat, in a rubber boat, and landed in Florida'; that they 'brought so
much money along from Germany, from the German government' he was
keeping it in a safe deposit box; and that they 'get instructions from the sitz
(hideout) in the Bronx what to do, and where to go'. The next morning
Cramer left a note for 'William Thomas' at the Commodore saying that
Norma Kopp had arrived and suggested a rendezvous. Later in the day
Cramer was arrested. He told the agents of the F.B.I. that the name of the
man who had been with him at Thompson's Cafeteria on the evening of June
23rd was 'William Thomas', that 'Thomas' had been working in a factory on
the West Coast since March, 1941, and had not been out of the United
States since then. He was asked if 'Thomas' was not Thiel. He then admitted
he was, saying that Thiel had used an assumed name, as he was having
difficulties with his draft board. He also stated that the money belt Thiel
gave him contained only $200 which Thiel owed him and that the $3500 in
his safe deposit box belonged to him and were the proceeds from the sale of
securities. After about an hour or so of the falsehoods Cramer asked to
speak to one of the agents alone. The request was granted. He then
recanted his previous false statements and stated that he felt sure that Thiel
had come from Germany by submarine on a mission for the German
Government and that he thought that mission was 'to stir up unrest among
the people and probably spread propaganda.' He stated he had lied in order
to protect Thiel.
The Court holds that this evidence is insufficient to sustain the conviction of
Cramer under the requirements of the Constitution. We disagree.
Article III, Sec. 3 of the Constitution defines treason as follows: 'Treason
against the United States, shall consist only in levying War against them, or
in adhering to their Enemies, giving them Aid and Comfort. No Person shall
be convicted of Treason unless on the Testimony of two Witnesses to the
same overt Act, or on Confession in open Court.'
The charge against Cramer was that of adhering. The essential elements of
the crime are that Cramer (1) with treasonable intent (2) gave aid and
comfort to the enemy.1
There was ample evidence for the jury that Cramer had a treasonable intent.
The trial court charged the jury that 'criminal intent and knowledge, being a
mental state, are not susceptible of being proved by direct evidence, and
therefore you must infer the nature of the defendant's intent and knowledge
from all the circumstances.' It charged that proof of criminal intent and
knowledge is sufficient if proved beyond a reasonable doubt, and that the
two witnesses are not necessary for any of the facts other than the overt
acts. On that there apparently is no disagreement. It also charged: 'Now
gentlemen, motive should not be confused with intent. If the defendant
knowingly gives aid and comfort to one who he knows or believes is an
enemy, then he must be taken to intend the consequences of his own
voluntary act, and the fact that his motive might not have been to aid the
enemy is no defense. In other words, one cannot do an act which he knows
will give aid and comfort to a person he knows to be an enemy of the United
States, and then seek to disclaim criminal intent and knowledge by saying
that one's motive was not to aid the enemy. So if you believe that the
defendant performed acts which by their nature gave aid and comfort to the
enemy, knowing or believing him to be an enemy, then you must find that
he had criminal intent, since he intended to do the act forbidden by the law.
The fact that you may believe that his motive in so doing was, for example,
merely to help a friend, or possibly for financial gain, would not change the
fact that he had a criminal intent.' On that there apparently is no
disagreement. A man who voluntarily assists one known or believed to be an
enemy agent may not defend on the ground that he betrayed his country for
only thirty pieces of silver. See Hanauer v. Doane, 12 Wall. 342, 347, 20
L.Ed. 439; Sprott v. United States, 20 Wall. 459, 463, 22 L.Ed. 371. 'The
consequences of his acts are too serious and enormous to admit of such a
plea. He must be taken to intend the consequences of his own voluntary
act.' Hanauer v. Doane, supra (12 Wall. 347, 20 L.Ed. 439). For the same
reasons a man cannot slip through our treason law because his aid to those
who would destroy his country was prompted by a desire to 'accommodate a
friend.'2 Loyalty to country cannot be subordinated to the amenities of
personal friendship.
Cramer had a traitorous intent if he knew or believed that Thiel and Kerling
were enemies and were working here in the interests of the German Reich.
The trial court charged that mere suspicion was not enough; but that it was
not necessary for Cramer to have known all their plans. There apparently is
no disagreement on that. By that test the evidence against Cramer was
overwhelming. The conclusion is irresistible that Cramer believed, if he did
not actually know, that Thiel and Kerling were here on a secret mission for
the German Reich with the object of injuring the United States and that the
money which Thiel gave him for safekeeping had been supplied by Germany
to facilitate the project of the enemy. The trial court charged that if the jury
found that Cramer had no purpose or intention of assisting the German
Reich in its prosecution of the war or in hampering the United States in its
prosecution of the war but acted solely for the purpose of assisting Kerling
and Thiel as individuals, Cramer should be acquitted. There was ample
evidence for the jury's conclusion that the assistance Cramer rendered was
assistance to the German Reich, not merely assistance to Kerling and Thiel
as individuals.
The trial judge stated when he sentenced Cramer that it did not appear that
Cramer knew that Thiel and Kerling were in possession of explosives or other
means for destroying factories in this country or that they planned to do
that. He stated that if there had been direct proof of such knowledge he
would have sentenced Cramer to death rather than to forty-five years in
prison. But however relevant such particular knowledge may have been to
fixing the punishment for Cramer's acts of treason, it surely was not
essential to proof of his traitorous intent. A defendant who has aided an
enemy agent in this country may not escape conviction for treason on the
ground that he was not aware of the enemy's precise objectives. Knowing or
believing that the agent was here on a mission on behalf of a hostile
government, he could not, by simple failure to ask too many questions,
assume that this mission was one of charity and benevolence toward the
United States. But the present case is much stronger. For Cramer claims he
believed the enemy agent's objective was to destroy national morale by
propaganda and not to blow up war factories. Propaganda designed to cause
disunity among adversaries is one of the older weapons known to warfare,
and upon occasion one of the most effective. No one can read this record
without concluding that the defendant Cramer knew this. He is an intelligent,
if misguided, man. He has a quick wit sharpened by considerable learing of
its kind. He is widely read and a student of history and philosophy,
particularly Ranke and Nietzsche. He had been an officer of a pro-German
organization, and his closest associate had been a zealous Nazi. He also had
listened to German propagandists over the short wave. But, in any event, it
is immaterial whether Cramer was acquainted with the efficacy of
propaganda in modern warfare. Undoubtedly he knew that the German
Government thought it efficacious. When he was shown consciously and
voluntarily to have assisted this enemy program his traitorous intent was
then and there sufficiently proved.
The Court does not purport to set aside the conviction for lack of sufficient
evidence of traitorous intent. It frees Cramer from this treason charge solely
on the ground that the overt acts charged are insufficient under the
constitutional requirement.
The overt acts alleged were (1) that Cramer met with Thiel and Kerling on
June 23rd, 1942, at the Twin Oaks Inn and 'did confer, treat, and counsel'
with them 'for the purpose of giving and with the intent to give aid and
comfort' to the enemy; (2) that Cramer 'did accompany, confer, treat, and
counsel with' Thiel at the Twin Oaks Inn and at Thompson's Cafeteria on
June 23rd, 1942, 'for the purpose of giving and with intent to give aid and
comfort' to the enemy; and (3) that Cramer gave false information of the
character which has been enumerated to agents of the F.B.I. 'for the
purpose of concealing the identity and mission' of Thiel and 'for the purpose
of giving and with intent to give aid and comfort' to the enemy.
The Court concedes that an overt act need not manifest on its face a
traitorous intention. By that concession it rejects the defense based on the
treason clause which Cramer has made here. The Court says an overt act
must 'show sufficient action by the accused, in its setting, to sustain a
finding that the accused actually gave aid and comfort to the enemy.' It
says, however, that the 'protection of the two-witness rule extends at least
to all acts of the defendant which are used to draw incriminating inferences
that aid and comfort have been given.' It adds, 'Every act, movement, deed,
and word of the defendant charged to constitute treason must be supported
by the testimony of two witnesses. The two-witness principle is to interdict
imputation of incriminating acts to the accused by circumstantial evidence or
by the testimony of a single witness. The prosecution cannot rely on
evidence which does not meet the constitutional test for overt acts to create
any inference that the accused did other acts or did something more than
was shown in the overt act, in order to make a giving of aid and comfort to
the enemy.' And when it comes to the overt acts of meeting and conferring
with Thiel and Kerling the Court holds that they are inadequate since there
was 'no two-witness proof of what they said nor in what language they
conversed.' That is to say, reversible error is found because the two
witnesses who testified to the fact that Cramer met twice with the saboteurs
did not testify that Cramer gave them information of 'value to their mission'
such as shelter, sustenance, supplies, encouragement or counsel.
That conclusion, we submit, leads to ludicrous results. The present case is
an excellent example.
It is conceded that if the two witnesses had testified not only that they saw
Cramer conferring with Thiel and Kerling but also heard him agree to keep
Thiel's money and saw him take it, the result would be different. But the
assumption is that since the two witnesses could not testify as to what
happened at the meetings, we must appraise the meetings in isolation from
the other facts of the record. Therein lies the fallacy of the argument.
In the first place, we fully agree that under the constitutional provision there
can be no conviction of treason without proof of two witnesses of an overt
act of treason. We also agree that the act so proved need not itself manifest
on its face the treasonable intent. And as the Court states, such intent need
not be proved by two witnesses. It may even be established by
circumstantial evidence. For it is well established that the overt act and the
intent are separate and distinct elements of the crime.3 The 'intent may be
proved by one witness, collected from circumstances, or even by a single
fact.' Case of Fries, 9 Fed.Cas. pages 826, 909, No. 5,126; Respublica v.
Roberts, 1 Dall. 39, 1 L.Ed. 27; United States v. Lee, 26 Fed.Cas. page 907,
No. 15,584; Trial of David Maclane, 26 How.St.Tr. 721, 795798. Acts
innocent on their face, when judged in the light of their purpose and of
related events, may turn out to be acts of aid and comfort committed with
treasonable purpose. It is the overt act charged as such in the indictment
which must be proved by two witnesses and not the related events which
make manifest its treasonable quality and purpose. This, we think, is the
correct and necessary conclusion to be drawn from the concession that the
overt act need not on its face manifest the guilty purpose. The grossest and
most dangerous act of treason may be, as in this case, and often is,
innocent on its face. But the ruling of the Court that the related acts and
events which show the true character of the overt act charged must be
proved by two witnesses is without warrant under the constitutional
provisions, and is so remote from the practical realities of proving the
offense, as to render the constitutional command unworkable. The
treasonable intent or purpose which it is said may be proved by a single
witness or circumstantial evidence must, in the absence of a confession of
guilt in open court, be inferred from all the facts and circumstances which
surround and relate to the overt act. Inference of the treasonable purpose
from events and acts related to or surrounding the overt act necessarily
includes the inference that the accused committed the overt act with the
knowledge or understanding of its treasonable character. To say that the
treasonable purpose with which the accused committed the overt act may be
inferred from related events proved by a single witness, and at the same
time to say that so far as they show the treasonable character of the overt
act, they must be proved by two witnesses, is a contradiction in terms. The
practical effect of such a doctrine is to require proof by two witnesses, not
only of the overt act charged which the Constitution requires but of every
other fact and circumstance relied upon to show the treasonable character of
the overt act and the treasonable purpose with which it was committed
which the Constitution plainly does not require. Here, as in practically all
cases where there is no confession in open court, the two are inseparable,
save only in the single instance where the overt act manifests its
treasonable character on its face. The court thus in substance adopts the
contention of the respondent, which it has rejected in words, and for all
practical purposes requires proof by two witnesses, not only of the overt act
but of all other elements of the crime save only in the case where the
accused confesses in open court. It thus confuses proof of the overt act with
proof of the purpose or intent with which the overt act was committed and,
without historical support, expands the constitutional requirement so as to
include an element of proof not embraced by its words.
We have developed in the Appendix to this opinion the historic function of
the overt act in treason cases. It is plain from those materials that the
requirement of an overt act is designed to preclude punishment for
treasonable plans or schemes or hopes which have never moved out of the
realm of thought or speech. It is made a necessary ingredient of the crime
to foreclose prosecutions for constructive treason. The treasonable project is
complete as a crime only when the traitorous intent has ripened into a
physical and observable act. The act standing alone may appear to be
innocent or indifferent, such as joining a person at a table, stepping into a
boat, or carrying a parcel of food. That alone is insufficient. It must be
established beyond a reasonable doubt that the act was part of the
treasonable project and done in furtherance of it. Its character and
significance are to be judged by its place in the effectuation of the project.
That does not mean that where the treasonable scheme involves several
treasonable acts, and the overt act which is charged has been proved by two
witnesses, that all the other acts which tend to show the treasonable
character of the overt act and the treasonable purpose with which it was
committed must be proved by two witnesses. The Constitution does not so
declare. There is no historical support for saying that the phrase 'two
Witnesses to the same overt Act' may be or can be read as meaning two
witnesses to all the acts involved in the treasonable scheme of the accused.
Obviously one overt act proved by two witnesses is enough to sustain a
conviction even though the accused has committed many other acts which
can be proved by only one witness or by his own admission in open court.
Hence, it is enough that the overt act which is charged be proved by two
witnesses. As the Court concedes, its treasonable character need not be
manifest upon its face. We say that its true character may be proved by any
competent evidence sufficient to sustain the verdict of a jury. Any other
conclusion lands to such absurd results as to preclude the supposition that
the two witness rule was intended to have the meaning attributed to it.
When we apply that test to the facts of this case it is clear to us that the
judgment of conviction against Cramer should not be set aside. The
historical materials which we have set forth in the Appendix to this opinion
establish that a meeting with the enemy may be adequate as an overt act of
treason. Hale, Kelyng and Foster establish that beyond peradventure of
doubt. Such a meeting might be innocent on its face. It might also be
innocent in its setting, as Hale, Kelying and Foster point out, where, for
example, it was accidental. We would have such a case here if Cramer's first
meeting with Thiel was charged as an overt act. For, as we have seen,
Cramer went to the meeting without knowledge that he would meet and
confer with Thiel. But the subsequent meetings were arranged between
them. They were arranged in furtherance of Thiel's designs. Cramer was not
only on notice that Thiel was here on a mission inimical to the interests of
this nation. He had agreed at the first meeting to hide Thiel's money. He had
agreed to contact Norma Kopp. He knew that Thiel wanted his identity and
presence in New York concealed. This was the setting in which the later
meetings were held. The meetings take on their true character and
significance from that setting. They constitute acts. They demonstrate that
Cramer had a liking for Thiel's design to the extent of aiding him in it. They
show beyond doubt that Cramer had more than a treasonable intent; that
that intent had moved from the realm of thought into the realm of action.
Since two witnesses proved that the meetings took place, their character
and significance might be proved by any competent evidence.
In the second place, this judgment of conviction should be sustained even
though we assume, arguendo, that Cramer's motion to dismiss at the end of
the government's case should have been granted. To concern of the Court is
that acts innocent on their face may be transformed into sinister or guilty
acts by circumstantial evidence, by inference, by speculation. The rule
announced by the Court is based on a desire for trust-worthy evidence in
determining the character and significance of the overt acts. But this is not a
case where an act innocent on its face is given a sinister aspect and made a
part of a treasonous design by circumstantial evidence, by inference, or by
the testimony of a single witness for the prosecution. We know from
Cramer's own testimonyfrom his admissions at the trialexactly what
happened.
We know the character of the meetings from Cramer's own admissions. We
know from his own lips that they were not accidental or casual conferences,
or innocent, social meetings. He arranged them with Thiel. When he did so
he believed that Thiel was here on a secret mission for the German Reich
with the object of injuring this nation. He also knew that Thiel was looking
for a place to hide his money. Cramer had offered to keep it for Thiel and
Thiel had accepted the offer. Cramer had also offered to write Norma Kopp,
Thiel's fiance e, without mentioning Thiel's name. Cramer also knew that
Thiel wanted his identity and his presence in New York concealed. Cramer's
admissions at the trial gave character and significance to those meetings.
Those admissions plus the finding of treasonable intent place beyond a
reasonable doubt the conclusion that those meetings were steps in and part
and parcel of the treasonable project.
Nor need we guess or speculate for knowledge of what happened at the
meetings. We need not rely on circumstantial evidence, draw inferences
from other facts, or resort to secondary sources. Again we know from
Cramer's testimony at the trialfrom his own admissionsprecisely what
transpired.
Cramer told the whole story in open court. He admitted he agreed to act and
did act as custodian of the saboteur Thiel's money. He agreed to hold it
available for Thiel's use whenever Thiel might need it. It is difficult to
imagine what greater aid one could give a saboteur unless he participated in
the sabotage himself. Funds were as essential to Thiel's plans as the
explosives he buried in the sands of Florida. Without funds the mission of all
the saboteurs would have soon ended or been seriously crippled. Cramer did
not stop here. Preservation of secrecy was essential to this invasion of the
enemy. It was vital if the project was to be successful. In this respect
Cramer also assisted Thiel. He cooperated with Thiel in the concealment of
Thiel's identity and presence in New York City. He did his best to throw
federal officers off the trail and to mislead them. He made false statements
to them saying that Thiel's true name was 'Thomas' and that Thiel had not
been not of the country since the war began.
If Cramer had not testified, we would then be confronted with the questions
discussed in the opinion of the Court. But he took the stand and told the
whole story. It is true that at the end of the government's case Cramer
moved to dismiss on the ground that the crime charged had not been made
out. That motion was denied and an exception taken. If Cramer had rested
there, the case submitted to the jury and a judgment of conviction rendered,
we would have before us the problem presented in the opinion of the Court.
But Cramer did not rest on that motion. He took the stand and told the
whole story. Any defect in the proof was cured by that procedure. As stated
in Bogk v. Gassert, 149 U.S. 17, 23, 13 S.Ct. 738, 739, 37 L.Ed. 631, 'A
defendant has an undoubted right to stand upon his motion for a nonsuit,
and have his writ of error, if it be refused; but he has no right to insist upon
his exception after having subsequently put in his testimony, and made his
case upon the merits, since the court and jury have the right to consider the
whole case as made by the testimony. It not infrequently happens that the
defendant himself, by his own evidence, supplies the missing link'. And see
Sigafus v. Porter, 179 U.S. 116, 121, 21 S.Ct. 34, 36, 45 L.Ed. 113; McCabe
& Steen Const. Co. v. Wilson, 209 U.S. 275, 276, 28 S.Ct. 558, 559, 52
L.Ed. 788; Bates v. Miller, 2 Cir., 133 F.2d 645, 647, 648; 9 Wigmore on
Evidence (3d ed. 1940) 2496. And the rule obtains in criminal as well as in
civil cases. Sheridan v. United States, 9 Cir., 112 F.2d 503, 504, reversed on
other grounds 312 U.S. 654, 61 S.Ct. 619, 85 L.Ed. 1104; Edwards v. United
States, 8 Cir., 7 F.2d 357, 359; Baldwin v. United States, 9 Cir., 72 F.2d
810, 812.
Why then must we disregard Cramer's admissions at the trial? Why must we
assume, as does this Court, that those admissions are out of the case and
that our decision must depend solely on the evidence presented by the
government?
The Constitution says that a 'confession in open Court' is sufficient to sustain
a conviction of treason. It was held in United States v. Magtibay, 2 Philippine
703, that a confession in open court to the overt acts charged in the
indictment was not an adequate substitute for the testimony of two
witnesses where the accused denied treasonable purpose. We need not go
so far as to say that if the whole crime may be proved by an admission by
the accused in open court, one of the ingredients of the offense may be
established in like manner. See Respublica v. Roberts, supra. We do not say
that if the government completely fails to prove an overt act or proves it by
one witness only, the defect can be cured by the testimony of other
witnesses or by the admissions of the accused. We do say that a meeting
with the enemy is an act and may in its setting be an overt act of treason.
We agree that overt acts innocent on their face should not be lightly
transformed into incriminating acts. But so long as overt acts of treason
need not manifest treason on their face, as the Court concedes, the
sufficiency of the evidence to establish the treasonable character of the act,
like the evidence of trasonable intent, depends on the quality of that
evidence whatever the number of witnesses who supplied it. There can be no
doubt in this case on that score. Certainly a person who takes the stand in
defense of a treason charge against him will not be presumed to commit
perjury when he makes admissions against self-interest. Admissions against
self-interest have indeed always been considered as the highest character of
evidence. When two witnesses testify to the overt acts, why then are not
admissions of the accused in open court adequate to establish their true
character? Could the testimony of any number of witnesses more certainly
or conclusively establish the significance of what was done? Take the case
where two witnesses testify that the accused delivered a package to the
enemy, the accused admitting in open court that the package contained
guns or ammunition. Or two witnesses testify that the accused sent the
enemy a message, innocuous on its face, the accused admitting in open
court that the message was a code containing military information. Must a
conviction be set aside because the two witnesses did not testify to what the
accused admitted in open court? We say no. In such circumstances we have
no examples of constructive treason. The intent is not taken for the deed.
Proof of the overt act plus proof of a treasonable intent make clear that the
treasonable design has moved out of the realm of thought into the filed of
action. And any possibility that an act innocent on its face has been
transformed into a sinister or guilty act is foreclosed. For the significance
and character of the act are supplied by the admissions from the lips of the
accused in open court. The contrary result could be reached only if it were
necessary that the overt act manifest treason on its face. That theory is
rejected by the Court. But once rejected it is fatal to the defense.
Cramer's counsel could not defend on the grounds advanced by the Court for
the simple reason that the government having proved by two witnesses that
Cramer met and conferred with the saboteurs, any possible insufficiency in
the evidence which it adduced to show the character and significance of the
meetings was cured by Cramer's own testimony. Cramer can defend only on
the ground that the overt act must manifest treason, which the Court
rejects, or on the ground that he had no treasonable intent, which the jury
found against him on an abundance of evidence. Those are the only
alternatives because concededly conferences with saboteurs here on a
mission for the enemy may be wholly adequate as overt acts under the
treason clause. They were proved by two witnesses as required by the
Constitution. Any possible doubt as to their character and significance as
parts of a treasonable project were removed by the defendant's own
admissions in open court. To say that we are precluded from considering
those admissions in weighing the sufficiency of the evidence of the true
character and significance of the overt acts is neither good sense nor good
law. Such a result makes the way easy for the traitor, does violence to the
Constitution and makes justice truly blind.
Appendix
The most relevant source of materials for interpretation of the treason
clause of the Constitution is the statute of 25 Edw. III, Stat. 5, ch. 2 (1351)
and the construction which was given it. It was with that body of law and the
English and colonial experience under it that the Framers were acquainted.
That statute specified seven offenses as constituting treason. As respects the
three offenses relevant to our present discussion, it provided as follows: if a
man 'doth compass or imagine the death' of the king, or 'if a man do levy
war' against the king in his realm, or if he 'be adherent to the king's enemies
in his realm, giving to them aid and comfort in the realm, or elsewhere, and
thereof be probably attainted of open deed', he shall be guilty of treason.
Coke makes clear that the requirement of an overt act under the statute
applies to all of the offenses included in the category of treason. See Coke,
Institutes of the Laws of England, Third Part (5th ed. London, 1671), p. 5.
There are indications by Coke that the overt act was a separate element of
the offense and that its function was to show that the treasonable design
had moved from thought to action. Id., pp. 5, 12, 14, 38. Hale is somewhat
more explicit. In discussing the offense of compassing the king's death he
indicates that the overt act may be 'indifferent' in character. He says, 'That
words may expound an overt-act to make good an indictment of treason of
compassing the king's death, which overt-act possibly of itself may be
indifferent and unapplicable to such an intent.' 1 Hale, History of the Pleas of
the Crown (Emlyn ed., London, 1736), p. 115. And he noted that 'If there be
an assembling together to consider how they may kill the king, this
assembling is an overt-act to make good an indictment of compassing the
king's death.' Id., p. 119. Kelying states the same view. He cites Sir Everard
Digby's Case, 1 St.Tr. 234, for the proposition that the meeting of persons
and their consulting to destroy the king was itself an overt act. 'It was
resolved that where a Person knowing of the Design does meet with them,
and hear them discourse of their traitorous Designs, and say or act nothing;
This is High-Treason in that Party, for it is more than a bare Concealment,
which is Misprision, because it sheweth his liking and approving of their
Design.' He says that if a person not knowing their intent met with them,
heard their plans, but said nothing and never met again, that would be only
misprision of treason. 'But if he after meet with them again, and hear their
Consultations, and then conceal it, this is High-Treason. For it sheweth a
liking, and an approving of their Design.' Kelyng, A Report of Divers Cases in
Pleas of the Crown (3d ed., London, 1873), p. *17. And see p. *21.
Foster is even more explicit. Like Coke he asserts that an overt act is
required for each branch of treason covered by the Statute of Edward III.
Foster, A Report of Some Proceedings on the Commission for the Trial of the
Rebels in the Year 1746 in the County of Surry, and of other Crown Cases
(2d ed., London 1791), pp. 207, 237. He makes clear that an overt act is
required not to corroborate the proof of a traitorous intent but to show that
the treasonable project has left the realm of thought and moved into the
realm of action. As respects the offense of compassing the death of the king,
he says that the indictment 'must charge, that the defendant did traitorously
compass and imagine &c, and then go on and charge the several overt-acts
as the means employed by the defendant for executing his traitorous
purposes. For the compassing is considered as the treason, the overt-acts as
the means made use of to effectuate the intentions and imaginations of the
heart.' Id., p. 194. He refers to Crohagan's Case (Cro.Car. 332) where the
defendant said 'I will kill the King of England, if I can come at him' and the
indictment added that he came to England for that purpose. 'The traitorous
intention, proved by his words, converted an action, innocent in itself, into
an overt-act of treason.' Id., p. 202. And he also points out that 'Overt-acts
undoubtedly do discover the man's intentions; but, I conceive, they are not
to be considered merely as evidence, but as the means made use of to
effectuate the purposes of the heart.' Id., p. 203. And he adds, 'Upon this
principle words of advice or encouragement, and, above all, consultations for
destroying the King, very properly come under the notion of means made
use of for the purpose. But loose words not relative to facts are, at the
worst, no more than bare indications of the malignity of the heart.' Id., p.
204. He follows Kelyng in saying that attendance at a meeting with previous
notice of the design to plot the death of the king or a return to a meeting
after knowledge is gained of its treasonable purpose is treason, though bare
concealment would not be if the defendant met the conspirators 'accidentally
or upon some indifferent occasion'. Id., p. 195.
It is true that these observations related to the offense of compassing or
imagining the death of the king. But Foster indicates that the same test
applies to make out the offense of adherence to the king's enemies. He says,
'The offense of inciting foreigners to invade the kingdom is a treason of
signal enormity. In the lowest estimation of things and in all possible events,
it is an attempt, on the part of the offender, to render his country the seat of
blood and desolation.' Id., pp. 196197. This was said in connection with
his discussion of Lord Preston's case, 12 How.St.Tr. 645, a landmark in the
law of treason. Lord Preston was indicted both for compassing the death of
the king and for adherence to his enemies. England was at war with France.
The indictment alleged as an overt act of treason that on December 30,
1690, Lord Preston and others hired a small boat in the County of Middlesex
to take them to another vessel which would carry them to France. The
indictment alleged that the defendants were en route to France to
communicate military information to the enemy. After the vessel set sail for
France and when the vessel was in the County of Kent, the defendants were
arrested. Papers containing information of value to the enemy were found on
the person of Lord Preston's servant. Lord Preston contended that since the
indictment laid the treason in Middlesex there was no showing that a legally
sufficient overt act of treason had been committed in that county. The court
held, however, that the act of boarding the boat in Middlesex was a
sufficient overt act of treason. Lord Chief Justice Holt ruled, 'Now the
question is, whether your lordship had a design to go to France with these
papers? If you had, and if your lordship did go on ship-board in order to it,
your taking boat in Middlesex in order to go on ship-board, is a fact done in
the county of Middlesex.' 12 How.St.Tr., p. 728.
Foster in his analysis of that case makes clear that taking the boat was an
overt act sufficient not only to the crime of compassing the death of the king
but also adherence to the enemies of the king. Foster, op. cit., pp. 197-198.
Yet on its face and standing alone the overt act of taking the boat was
completely innocent and harmless. Only when it was related to other
activities and events did it acquire a treasonable significance. Foster gives
other indications that in case of adherence to the enemy the function of the
overt act is no different than when the offense of compassing is charged.
The crime of adherence is made out where the defendant attempts to send
money, provisions, or information to the enemy 'though the money or
intelligence should happen to be intercepted; for the party in sending did all
he could; the treason was complete on his part, though it had not the effect
he intended.' Id., p. 217.
Blackstone emphasizes the desirability of a restrictive interpretation of the
offense of treason, condemning 'constructive' treason and 'newfangled
treasons' which imperil the liberty of the people. 4 Blackstone,
Commentaries (6th ed. Dublin 1775), pp. 75, 83, 85, 86. Blackstone
recognizes the distinction between evidence of intent and the overt act: 'But,
as this compassing or imagination is an act of the mind, it cannot possibly
fall under any judicial cognizance, unless it be demonstrated by some open,
or overt act. And yet the tyrant Dionysius is recorded to have executed a
subject, barely for dreaming that he had killed him; which was held for a
sufficient proof, that he had thought thereof in his waking hours. But such is
not the temper of the English law; and therefore, in this, and the three next
species of treason, it is necessary that there appear an open or overt act of
a more full and explicit nature, to convict the traitor upon.' Id., p. 79. When
it comes to the offense of adherence to the enemy he gives examples of
adequate overt acts, some of which may be innocent standing by
themselves. 'This must likewise be provided by some overt act, as by giving
them intelligence, by sending them provisions, by selling them arms, by
treacherously surrendering a fortress, or the like.' Id., pp. 8283. His
analysis supports the views of Foster that the function of the overt act is to
show that the traitorous project has moved out of the realm of thought into
the realm of action.
The English cases prior to 1790 support this thesis. We have mentioned Lord
Preston's case. In the case of Captain Vaughn, 13 How.St.Tr. 485, the
principal charge against the defendant was adhering to the enemy, though
levying war was also alleged. The substance of the overt act of adherence
was that when France and England were at war the defendant cruised in a
small ship of war, in English waters, in the service of France with intent to
take the king's ships. It was objected that the overt act alleged was
insufficient 'for it is said only he went a-cruising; whereas they ought to
have alleged that he did commit some acts of hostility, and attempted to
take some of the king's ships; for cruising alone cannot be an overt-act; for
he might be cruising to secure the French merchantships from being taken,
or for many other purposes, which will not be an overt-act of treason.'
p.531. But Lord Chief Justice Holt ruled: 'I beg your pardon. Suppose the
French king, with forces, should come to Dunkirk with a design to invade
England; if any one should send him victuals, or give him intelligence, or by
any other way contribute to their assistance, it would be high-treason in
adhering to the king's enemies.' p. 531. And Lord Chief Justice Treby added:
'The indictment is laid for adhering to, and comforting and aiding the king's
enemies. You would take that to be capable to be construed adhering to the
king's enemies in other respects; but I take it to be a reasonable
construction of the indictment, to be adhering to the king's enemies in their
enmity. What is the duty of every subject? It is to fight with, subdue, and
weaken the king's enemies: and contrary to this, if he confederate with, and
strengthen the king's enemies, he expressly contradicts this duty of his
allegiance, and is guilty of this treason of adhering to them. But then you
say here is no aiding unless there was something done, some act of hostility.
Now here is going aboard with an intention to do such acts; and is not that
comforting and aiding? Certainly it is. Is not the French king comforted and
aided, when he has got so many English subjects to go a cruising upon our
ships?' pp. 532, 533. And he went on to say that acts which 'give the enemy
heart and courage to go on with the war' are acts of adherence even though
the whole project was 'an unprosperous attempt.' p. 533. He emphasized
that the lack of success was immaterial, for 'if they have success enough, it
will be too late to question them.' p. 533. This is plain recognition not only
that the aid and comfort may be given though the project is thwarted1 but
also that aid and comfort is given when the enemy is encouraged and his
morale bolstered as well as when materials are furnished.
The case of Francis De la Motte, 21 How.St.Tr. 687, is also somewhat
illuminating. The indictment charged compassing and adhering. The overt
acts included writing and causing to be written documents conveying
intelligence to the enemy, procuring a messenger to cary the documents,
and hiring a person to gather and to send the intelligence. Mr. Justice Buller
in his charge to the jury said: 'The sending intelligence, or collecting
intelligence, for the purpose of sending it to an enemy, to enable them to
annoy us or to defend themselves, though it be never delivered to the
enemy; or the hiring a person for that purpose, is an overt act of both the
species of treason which I am stating to you from this indictment.' p. 808.
These materials indicate that the function of the overt act was to make
certain that before a conviction for the high crime of treason may be had
more than a treasonable design must be established; it must be shown that
action pursuant to that design has been taken. The treason of adherence
was defined essentially in terms of conduct for it involved giving aid and
comfort. Yet the attempt alone was sufficient; the aid and comfort need not
have been received by the enemy. Conduct amounting to aid and comfort
might be innocent by itselfsuch as collecting information or stepping into a
boat. It was sufficient if in its setting it reflected a treasonable project. It
need not entail material aid; comfort or encouragement was sufficient. The
only requirement was that it definitely translate treasonable thought into
action which plainly tended to give aid and comfort to the enemy.
These materials likewise support the contention of the government that the
overt act need not manifest treason on its face.
The history of treason in this country down to the Constitution has been
recently developed in Hurst, Treason in the United States, (1944) 58
Harv.L.Rev. 226. We do not stop to explore that field. But Professor Hurst's
researches make plain that prior to the revolution the influence of 25 Edw.
III was strong in the colonies and that, if anything, the scope of the offense
was somewhat broadened. The Revolution changed matters. The Continental
Congress recommended more restrictive legislation to the colonies which
limited treason to levying war and adhering to the enemy, giving him aid
and comfort. Id., p. 247. No form of treason by compassing was retained.
Id., p. 252. Distrust of constructive treason was beginning to be voiced (id.,
pp. 253, 254) though in some colonies treason was so broadly defined as to
include mere utterances of opinions. Id., pp. 266 et seq.
The proceedings of the Constitutional Convention of 1787 have been related
in the opinion of the Court. And see Hurst, Treason in the United States, 58
Harv.L.Rev. 395. As the Court points out the Framers were anxious to guard
against convictions of the innocent by perjury and to remove treason from
the realm of domestic, political disputes. Franklin expressed concern on the
first in his statement that 'prosecutions for treason were generally virulent;
and perjury too easily made use of against innocence.' 2 Farrand, Records of
the Federal Convention, p. 348. Madison and Jefferson2 both expressed
distrust of treason for its long history of abuse in the political field. Madison
said in language somewhat reminiscent of Blackstone: 'As treason may be
committed against the United States, the authority of the United States
ought to be enabled to punish it. But as new-fangled and artifical treasons
have been the great engines by which violent factions, the natural offspring
of free government, have usually wreaked their alternate malignity on each
other, the convention have, with great judgment, opposed a barrier to this
peculiar danger, by inserting a constitutional definition of the crime, fixing
the proof necessary for conviction of it, and restraining the Congress, even
in punishing it, from extending the consequences of guilt beyond the person
of its author.' The Federalist, No. XLIII.
The requirement of two wotnesses was not novel. England had long had that
rule. 9 Holdsworth, A History of English Law (2d ed. 1938) p. 207. The
novelty was in the requirement that there be two witnesses to the 'same'
overt act. Moreover, there was no novely in the offenses which were
included in the definition of treason. Adhering to the enemy, giving him aid
and comfort, like levying war, had long been embraced in the English crime
of treason as we have seen. But there was novelty in the narrow definition of
treason which was adopteda restrictive definition born of the fear of
constructive treason and distrust of treason as a political instrument.
There is, however, no evidence whatever that the offense of adhering to the
enemy giving him aid and comfort was designed to encompass a narrower
field than that indicated by its accepted and settled meaning. Nor is there
the slightest indication that the kind or character of overt acts required were
any different than those which had long been recognized or accepted as
adequate. The overt act was of course 'intended as a distinct element of
proof of the offense in addition to intent.' Hurst, op. cit., pp. 415 416. But
any suggested difference from the body of law which preceded vanishes
when two witnesses to the same overt act are produced. As respects the
point vital for our decision it is therefore quite inaccurate for the Court to
conclude that our treason clause 'taught a concept that differed from all
historical models.' That would be true only if there was a purpose to depart
from the concept of adhering to the enemy or the concept of overt acts
which had become ingrained in the antecedent English law. We find no such
purpose.
CC | Transformed by Public.Resource.Org
1
18 U.S.C. 1, 18 U.S.C.A. 1, derived from Act of April 30, 1790, c. 9, 1, 1 Stat.
112.
2
Article III, Section 3.
3
D.C.S.D.N.Y.1919, 259, F, 685, 690.
4
This view was recently followed by Judge Clancy in District Court, in dismissing an
indictment for treason. United States v. Leiner, S.D.N.Y.1943 (unreported).
5
United States v. Cramer, 2 Cir., 137 F.2d 888, 896.
6
D.C.S.D.N.Y.1919, 259 F. 673, 677.
7
'An overt act, in criminal law, is an outward act done in pursuance and in
manifestation of an intent or design; an overt act in this case means some physical
action done for the purpose of carrying out or affecting (sic) the treason.' United
States v. Haupt, N.D.Ill.1942, 47 F.Supp. 836, 839, reversed on other grounds, 7
Cir., 1943, 136 F.2d 661.
'The overt act is the doing of some actual act, looking towards the accomplishment
of the crime.' United States v. Stephan, D.C.E.D.Mich.1943, 50 F.Supp. 738, 742,
743, note.
8
320 U.S. 730, 64 S.Ct. 192.
9
64 S.Ct. 1149. Counsel for petitioner, although assigned by the trial court, has
responded with extended researches. The Solicitor General engaged scholars not
otherwise involved in conduct of the case to collect and impartially to summarize
statutes, decisions, and taxts from Roman, Continental, and Canon law as well as
from English, Colonial and American law sources. The part of the study dealing with
American materials has been made available through publication in 58 Harv.L.Rev.
226 et seq. Counsel have lightened our burden of examination of the considerable
accumulation of historical materials.
10
The Committee included John Adams, Thomas Jefferson, John Rutledge, James
Wilson, and Robert Livingston. See C. F. Adams, Life of John Adams in 1 Works of
John Adams (1856) 224, 225.
11
Resolved, That all persons abiding within any of the United Colonies, and deriving
protection from the laws of the same, owe allegiance to the said laws, and are
members of such colony; and that all persons passing through, visiting, or make
(sic) a temporary stay in any of the said colonies, being entitled to the protection of
the laws during the time of such passage, visitation or temporary stay, owe, during
the same time, allegiance thereto:
'That all persons, members of, or owing allegiance to any of the United Colonies, as
before described, who shall levy war against any of the said colonies within the
same, or be adherent to the king of Great Britain, or others the enemies of the said
colonies, or any of them, within the same, giving to him or them aid and comfort,
are guilty of treason against such colony:
'That it be recommended to the legislatures of the several United Colonies, to pass
laws for punishing, in such manner as to them shall seem fit, such persons before
described, as shall be proveably attainted of open deed, by people of their
condition, of any of the treasone before described.' 5 Journals of the Continental
Congress (1906) 475.
12
Nine states substantially adopted the recommendation of the Congress: Delaware,
Massachusetts, New Hampshire, New Jersey, New York, North Carolina,
Pennsylvania, Rhode Island, Virginia. (The Virginia law, though it did not copy in full
the recommendation of Congress, was drawn by Jefferson, among others, and
hence probably can be regarded as originating in the same source as the others.)
Three states had basic treason statutes not patterned on the Congressional model,
one antedating the latter: Connecticut, Maryland, South Carolina. Georgia is not
found to have enacted any general treason statute, although it passed a number of
separate acts of attainder.
The Maryland act declared that 'the several crimes aforesaid shall receive the same
constructions that have been given to such of the said crimes as are enumerated in
the statute of Edward the third, commonly called the statute of treasons.' None of
the statutes contained negative language, limiting the definition of treason
expressly to that set forth in the statute. In general, too, they added to the
definition of the model recommended by Congress other specific kinds of treason.
Thus a number defined treason as including conspiracy to levy war. Conspiracy to
adhere to the enemy and give aid and comfort was also included in several, or
incorporated by separate acts. Much explicit attention was given to the problem of
contact with the enemy. Conveying of intelligence or carrying on of correspondence
with the enemy were expressly mentioned. One typical provision declared guilty of
treason those persons who were 'adherent to * * * the enemies of this State within
the same, or to the Enemies of the United States * * * giving to * * * them Aid or
Comfort, or by giving to * * * them Advice or Intelligence either by Letters,
Messages, Words, Signs or Tokens, or in any way whatsoever, or by procuring for,
or furnishing to * * * them any Kind of Provisions or Warlike Stores * * *.' Other
provisions referred to 'joining their Armies,' 'inlisting or persuading others to inlist
for that Purpose,' 'furnishing Enemies with Arms or Ammunition, Provision or any
other Articles for such their Aid or Comfort,' 'wilfully betraying, or voluntarily
yielding or delivering any vessel belonging to this State or the United States to the
Enemies of the United States of America'; and to persons who 'have joined, or shall
hereafter join the Enemies of this State, or put themselves under the Power and
Protection of the said Enemies, who shall come into this State and rob or plunder
any Person or Persons of their Goods and Effects, or shall burn any Dwelling House
or other Building, or be aiding or assisting therein,' or who should maliciously and
with an intent to obstruct the service dissuade others from enlisting, or maliciously
spread false rumors concerning the forces of either side such as to alienate the
affections of the people from the Government 'or to terrify or discourage the good
Subjects of this State, or to dispose them to favor the Pretensions of the Enemy,' or
who 'shall take a Commission or Commissions from the King of Great Britain, or any
under his Authority, or other the Enemies of this State, or the United States of
America.'
A number of the statutes required 'the testimony of two lawful and credible
witnesses.' But the requirement was not linked to the proof of overt acts, and there
was no suggestion of the type of provision later embodied in the Constitution.
Supplementary acts creating special treasonable offenses tended to omit any
requirement as to quantum of proof.
See Hurst, op cit. supra, 58 Harv.L.Rev. at 248 et seq.
13
For example, the New York Act of March 30, 1781, after reciting that it was
necessary to make further provision respecting treason in order to prevent
adherence to the king, made it a felony to declare or maintain 'that the King of
Great Britain hath, or of Right ought to have, any Authority, or Dominion, in or over
this State, or the Inhabitants thereof,' or to persuade or attempt to persuade any
inhabitant to renounce allegiance to the State or acknowledge allegiance to the
king, or to affirm one's own allegiance to the king. A person convicted was to 'suffer
the Pains and Penalties prescribed by Law in Cases of Felony without Benefit of
Clergy,' except that the court might, instead of prescribing death, sentence to three
years' service on an American warship. Laws of the State of New-York (Pough-
keepsie, 1782) 4th Sess., Ch. XLVIII. Virginia imposed a fine not exceeding 20,000,
and imprisonment up to five years 'if any person residing or being within this
commonwealth shall * * * by any word, open deed, or act, advisedly and willingly
maintain and defend the authority, jurisdiction, or power, of the king or parliament
of Great Britain, heretofore claimed and exercised within this colony, or shall
attribute any such authority, jurisdiction, or power, to the king or parliament of
Great Britain. * * *.' Laws, October, 1776, Ch. V, 9 Hening, Statutes at Large
(1823) 170. See also Hurst, op. cit. supra, 58 Harv.L.Rev. at 265267.
14
A similar situation prevailed during the Civil War, when treason prosecutions were
instituted against citizens of some southern states for treason to the state,
consisting of adherence to the United States. See Robinson, Justice in Grey, pp.
176, 199, 201, 202, 270, 289, 380, 385, 408.
15
See Hurst, Treason in the United States (1944) 58 Harv.L.Rev. 226, 268-71.
Although these acts, dealing with withdrawal to enemy territory, imposed in general
only forfeiture and banishment, some did reinforce these penalties with the threat
of death if the person should later be found within the state. Id., 272.
16
The only pre-Revolutionary treason trial of which there is an extensive record is
King v. Bayard (1702), a New York prosecution under an Act of May 6, 1691, which
made it treason 'by force of arms or otherwise to disturb the peace good and quiet
of this their Majestyes Government as it is now Established.' (The act was thought
by the home authorities to be objectionably broad and vague and was later
repealed.) See The Trial of Nicholas Bayard, 14 Howell's State Trials 471; 10
Lawson, American State 518; Hurst, op. cit. supra, 58 Harv.L.Rev. at 233. For other
material on colonial treason prosecutions, see Hurst, op. cit. supra, 58 Harv.L.Rev.
at 234, n. 15.
17
In the early part of the colonial period, charters and grants gave royal governors
authority to use martial law for suppression of 'rebellion,' 'sedition,' and 'mutiny,'
and references to treason were not in the traditional language. A provision of the
General Laws of New Plimouth Colony, 1671, is representative:
'3. Treason against the Person of our Soveraign Lord the King, the State and
Common-wealth of England, shall be punished by death.
'4. That whosoever shall Conspire and Attempt any Invasion, Insurrection, or
Publick Rebellion against this Jurisdiction, or the Surprizal of any Town, Plantation,
Fortification or Ammunition, therein provided for the safety thereof, or shall
Treacherously and Perfidiously Attempt and Endeavor the Alteration and Subversion
of the Fundamental Frame and Constitutions of this Government; every such
Person shall be put to Death.'
But the bulk of colonial legislation prior to the Revolution drew extensively on
English law, especially the statute 25 Edward III. Some of the acts substantially
adopted the language of the latter statute, with additions, and some simply
declared that the offense of treason should follow the English law. With the
exception of Georgia and New Jersey, all the colonies eventually adopted one or the
other type statute.
In addition, the English law of treason itself applied, to an undefined extent, and
several colonial acts were disallowed on the theory that they covered ground
already occupied by the mother country's legislation. The colonies which enacted
their own statutes patterned after 25 Edward III did not narrow its terms. Several
expressly included the treason of compassing the death of the king, and a couple
even made an analogous offense of compassing the death of the proprietor. The
offense of levying war against the king was given a broad definition; some of the
colonies expressly included various forms of 'constructive' levying of war which had
been put into the English statute by judicial construction, in general extending the
crime to domestic disturbances; and some of the statutes made conspiracy to levy
war sufficient to constitute the crime of levying war. Some specific attention was
given in separate legislation at various times to contact with the enemy, legislation
comparable to that subsequently enacted during the Revolutionary period.
Most of the colonial treason acts contained two-witness requirements, without the
additional qualification later adopted in the Constitution, that they must be
witnesses to the same overt act, although it was required that they be witnesses to
the same general kind of treason.
See generally Hurst, op. cit. supra, 58 Harv.L.Rev. at 226 245.
18
'The men who framed the instruments remembered the crimes that had been
perpetrated under the pretense of justice; for the most part they had been traitors
themselves, and having risked their necks under the law they feared despotism and
arbitrary power more than they feared treason.' 3 Adams, History of the United
States, 468.
'Every member of that Conventionevery officer and soldier of the Revolution from
Washington down to private, every man or woman who had given succor or
supplies to a member of the patriot army, everybody who had advocated American
independence * * * could have been prosecuted and convicted as 'traitors' under
the British law of constructive treason.' 3 Beveridge, Life of John Marshall, 402,
403.
19
This was doubtless the meaning of Franklin's quip at the signing of the Declaration
of Independence that if the signers did not hang together they should hang
separately. It was also the meaning of the cries of 'Treason' which interrupted
Patrick Henry in the speech in the Virginia House of Burgesses evoking the famous
reply 'If this be treason, make the most of it.'
20
1 Journals of the Continental Congress, 65. See also 1 Burnett, ed., Letters of
Members of the Continental Congress (1921) 43, 44, n. 36.
21
The men who were responsible for framing our Constitution were influenced by
eighteenth century liberal thought from both French and English sources. French
influences, more philosophical than legal in character, were particularly strong with
Franklin, who took a significant part in framing the treason clause. Franklin had
been a member of the French Academy of Sciences since 1772 and had many
friends among French intellectuals. He spent much time in England and in France,
to which he was sent by the Continental Congress as Commissioner in 1776. He
remained until 1783, when he signed the Treaty of Peace with England, and
thereafter until 1785 as Minister to France. Becker, Franklin, 6 Dictionary of
American Biography 585; 9 Encyclopedia Britannica (14th ed.) 693. Jefferson, a
strong influence with the men of that period, was sent to France by the Continental
Congress to assist Franklin, remaining there from 1784 to 1789, succeeding
Franklin in 1785 as Minister. Jefferson was so closely in touch with French
revolutionary thought that in July 1789 he was invited to assist in the deliberations
of the Committee of the French National Assembly to draft a Constitution, but
declined out of respect for his position. See Malone, Jefferson, 10 Dictionary of
American Biography 17; 12 Encyclopedia Britannica (14th ed.) 988. See also,
generally, Chinard, Thomas Jefferson, the Apostle of Americanism. Best known in
America of the French writings was Montesquien's L'Esprit des Lois, which appeared
in French in 1748. (An English edition was published in London in 1750.) Book 12
thereof was devoted to his philosophical reactions to the abuses of treason. It is
hardly a coincidence that the treason clause of the Constitution embodies every one
of the precepts suggested by Montesquieu in discussing the excesses of ancient and
European history.
Some of his precepts were: 'If the crime of high treason be indeterminate, this
alone is sufficient to make the government degenerate into arbitrary power.' Book
12, Ch. 7, Of the Crime of High Treason. 'The laws do not take upon them to punish
any other than overt acts.' Book 12, Ch. 11, Of Thoughts. 'Nothing renders the
crime of high treason more arbitrary than declaring people guilty of it for indiscreet
speeches. * * * Words do not constitute an overt act; they remain only in idea. * *
* Overt acts do not happen every day; they are exposed to the eye of the public;
and a false charge with regard to matters of fact may be easily detected. Words
carried into action assume the nature of that action. Thus a man who goes into a
public market-place to incite the subject to revolt, incurs the guilt of high treason,
because the words are joined to the action, and partake of its nature. It is not the
words that are punished but an action in which the words are employed.' Book 12,
Ch. 12, Of Indiscreet Speeches. 'Those laws which condemn a man to death on the
deposition of a single witness, are fatal to liberty.' Book 12, Ch. 3, Of The Liberty of
the Subject.
Both French and English influences on American thought as shown by Jefferson's
writings are tracted by Perry, Puritanism and Democracy (1945) 126, 130, 134,
158, 182, 184, 185.
22
'Declaration what offenses shall be adjudged treason. Item, whereas divers
opinions have been before this time in what case treason shall be said, and in what
not; the King, at the request of the lords and of the commons, hath made a
declaration in the manner as hereafter followeth, that is to say, when a man doth
compass or imagine the death of our lord the King, or of our lady his queen or of
their eldest son and heir; or if a man do violate the King's companion, or the King's
eldest daughter unmarried, or the wife the King's eldest son and heir; or if a man
do levy war against our lord the King in his realm, or be adherent to the king's
enemies in his realm, giving to them aid and comfort in the realm, or elsewhere,
and thereof be probably attainted of open deed by the people of their condition:
And if a man counterfeit the King's great or privy seal, or his money; and if a man
bring false money into this realm, counterfeit to the money of England, as the
money called lushburgh, or other, like to the said money of England, knowing the
money to be false, to merchandise or make payment in deceit of our said lord the
King and of his people; and if a man slea the chancellor, treasurer, or the King's
justices of the one bench or the other, justices in eyre, or justices of assise, and all
other justices assigned to hear and determine, being in their places, doing their
offices: and it is to be understood, that in the cases above rehearsed, that ought to
be judged treason which extends to our lord the King, and his royal majesty: And of
such treason the forfeiture of the escheats pertaineth to our sovereign lord, as well
as of the lands and tenements holden of other, as of himself: And moreover there is
another manner of treason, that is to say, when a servant slayeth his master, or a
wife her husband, or when a man secular or religious slayeth his prelate, to whom
he oweth faith and obedience; and of such treason the escheats ought to pertain to
every lord of his own fee. And because that many other like cases of treason may
happen in time to come, which a man cannot think or declare at this present time;
it is accorded, that if any other case, supposed treason, which is not above
specified, doth happen before any justices, the justices shall tarry without any
going to judgment of the treason, till the cause be shewed and declared before the
King and his Parliament, whether it ought to be judged treason or other felony. And
if percase any man of this realm ride armed covertly or secretly with men of arms
against any other, to slay him, or rob him, or take him, or retain him till he hath
made fine or ransom for to have his deliverance, it is not the mind of the King nor
his counsel, that in such case it shall be judged treason but shall be judged felony
or trespass, according to the laws of the land of old time used, and according as the
case requireth.' 4 Halsbury's Statutes of England 273.
23
Stephen said of it: 'In quiet times it is seldom put in force, and if by any accident it
is necessary to apply it, the necessity for doing so is obvious. For revolutionary
periods it is obviously and always insufficient, and at such times it is usually
supplemented by enactments which ought to be regarded in the light of war
measures, but which are usually represented by those against whom they are
directed as monstrous invasions of liberty. The struggle being over, the statute of
25 Edw. 3 is reinstated as the sole definition of treason, and in this way it has
become the subject of a sort of superstitutious reverence.' 2 Stephen, History of
the Criminal Law of England (1883) 250, 251; see also 3 Holdsworth (4th ed. 1935)
287.
Blackstone says: 'But afterwards, between the reign of Henry the fourth and queen
Mary, and particularly in the bloody reign of Henry the eighth, the spirit of inventing
new and strange treasons was revived; among which we may reckon the offences
of clipping money; breaking prison or rescue, when the prisoner is committed for
treason; burning houses to extort money; stealing cattle by Welshmen;
counterfeiting foreign coin; wilful poisoning; execrations against the king; calling
him opprobrious names by public writing; counterfeiting the sign manual or signet;
refusing to abjure the pope; deflowering, or marrying without the royal licence, any
of the king's children, sisters, aunts, nephews, or nieces; bare solicitation of the
chastity of the queen or princess, or advances made by themselves; marrying with
the king, by a woman not a virgin, without previously discovering to him such her
unchaste life; judging or believing (manifested by any overt act) the king to have
been lawfully married to Anne of Cleve; derogating from the king's royal stile and
title; impugning his supremacy; and assembling riotously to the number of twelve,
and not dispersing upon proclamation * * *.' 4 Blackstone 86, 87.
24
Rex v. Casement, (1917) 1 K.B. 98; Knott, Trial of Roger Casement, 184, 185.
25
Chief among these were Coke and Blackstone. Coke emphasized the salutary
effects of the Statute of Edward III in limiting treason prosecution and strongly
emphasized the overt act requirement, probably quoting Bracton. Institutes of the
Laws of England, 5th Ed. (1671) Part III, 14. He used as examples overt acts which
of themselves appear to evidence treasonable intent. Id., 2, 3, and 14. See 1 Hale,
History of the Pleas of the Crown (1736) 86, 259. But we cannot be sure whether
this was intended to imply that acts from which intent would be less evident would
suffice. Other authors known on this side of the water leave us with little light on
our particular problem.
Hale (History of the Pleas of the Crown, Emlyn ed. London, 1736) frequently uses
terminology, found in Coke and earlier writers, which might mean that the function
of an overt act is to prove intent, saying that the overt act is to 'manifest' or
'declare' the compassing of the king's death, and so forth. Id., 109. But, as in the
other writers, the statements are usually open as well to the interpretation that the
act must show translation of thought into action. In the latter sense, the act
'declares' intent in that it shows, in the light of other evidence, that the defendant's
thoughts were not mere idle desires. This is a different thing from saying that the
overt act must of itself display an unambiguously traitorous character. Elsewhere
Hale gives some support to the view that the act may itself be of an innocent
character. Dealing with the principle that words alone cannot be an overt act, he
says that 'words may expound an overt-act to make good an indictment of treason
of compassing the king's death, which overt-act possibly of itself may be indifferent
and unapplicable to such an intent; and therefore in the indictment or treason they
may be joined with such an overt-act, to make the same applicable and expositive
of such a compassing.' Id., 115. He also declares that the mere meeting of persons
with the intent of plotting the king's death is a sufficient overt-act for the treason of
compassing the king's death. Id., 108, 109. These remarks, however, deal only
with compassing the king's death, and little light is given as to the overt act in
connection with levying war and adhering to the enemy. With Coke, Hale takes the
position that a mere meeting of persons to conspire, though sufficient under the
compassing clause, is not sufficient for the levying-of-war clause. Id., 130.
Foster's view of the overt act does not seem materially different from Hale's. (A
Report of Some Proceedings on the Commission for the Trial of the Rebels in the
Year 1746 in the County of Surry; and of other Crown Cases, 2d ed. 1791.) 'Overt
acts undoubtedly do discover the man's intentions; but, I conceive, they are not to
be considered merely as evidence, but as the means made use of to effectuate the
purposes of the heart. * * * though in the case of the King overt-acts of less
malignity, and having a more remote tendency to his destruction, are, with great
propriety, deemed treasonable; yet still they are considered as means to affectuate
(sic), not barely as evidence of the treasonable purpose.' Foster also repeats the
assertion that the mere meeting of persons with intent to plan the king's death is a
sufficient overt act. Id., 195. However, his discussion, too, is confined to the
treason of compassing, and he says little that is helpful about levying war and
adhering.
26
These are: Trial of Sir Nicholas Throckmorton, 1 How.St.Tr. 869 (1 Mary, 1554);
Trial of Sir Richard Grahme (Lord Preston's Case), 12 How.St.Tr. 645 (2 William and
Mary, 1691); Trial of Sir John Freind, 13 How.St.Tr. 1, 4, 11 (8 William III, 1696);
Trial of Sir William Parkyns, 13 How.St.Tr. 63, 67 (8 William III, 1696); Trial of
Peter Cook, 13 How.St.Tr. 311, 346 (8 William III, 1696); Trial of Captain Vaughn,
13 How.St.Tr. 485 (8 William III, 1696); Trial of William Gregg, 14 How.St.Tr. 1371
(6 Anne, 1708); Trial of James Bradshaw, 18 How.St.Tr. 415 (20 George II, 1746);
Trial of Dr. Hensey, 19 How.St.Tr. 1341 (32 George II, 1758); Trial of Francis De la
Motte, 21 How.St.Tr. 687 (21 George III, 1781); and the Trial of David Tyrie, 21
How.St.Tr. 815(22) George III, 1782).
27
Philip Guedalla characterizes the figures of the American Revolution as they occur in
British legend: 'There they are oddly shrunken; they dwindle into a provincial
pettiness; and their voices monotonously intone the dreary formulae of sedition.'
Fathers of the Revolution, p. 8.
28
Mr. Jefferson had referred to the Statute of Edward III as 'done to take out of the
hands of tyrannical Kings, and of weak and wicked Ministers, that deadly weapon,
which constructive treason had furnished them with, and which had drawn the
blood of the best and honestest men in the kingdom.' 1 Writings of Thomas
Jefferson (Library ed. 1903) 215.
Later, as Secretary of State, he wrote: 'Treason * * * when real, merits the highest
punishment. But most codes extend their definitions of treason to acts not really
against one's country. They do not distinguish between acts against the
government, and acts against the oppressions of the government; the latter are
virtues; yet they have furnished more victims to the executioner than the former;
because real treasons are rare; oppressions frequent. The unsuccessful strugglers
against tyranny, have been the chief martyrs of treason laws in all countries.' 8
Jefferson's Writings 332. Compare 7th Annual Message, 1807, 3 Jefferson's Writing
451, 452.
29
2 Farrand, Records of the Federal Convention of 1787, 136.
30
Art. VII, Sec. 2, of draft reported August 6, 1787. 2 Farrand 182.
31
The debates are at 2 Farrand 345350.
32
James Wilson was not unlikely one of the authors of the treason clause, as a
member of the Committee on Detail. He had participated in the Pennsylvania
treason trials in 1778 as one of the defense counsel (Respublica v. Malin, Pa. O. &
T., 1 Dall. 33, 1 L.Ed. 25; Respublica v. Carlisle, 1 Dall. 35, 1 L.Ed. 26; Respublica
v. Roberts, 1 Dall. 39, 1 L.Ed. 27. In the Pennsylvania ratifying convention he made
detailed statements in praise of the clause without its having been challenged. 2
Elliott, Debates, 469, 487. Later, he devoted a lecture to the clause in his law
course delivered at the College of Philadelphia in 1790 and 1791. 3 Works of Hon.
James Wilson (Bird Wilson, ed. 1804) 95-107.
33
The convention did reject proposals that the states be denied authority to define
treason against themselves and that participation in a civil war between a state and
the United States be excepted. See 2 Farrand 345, 348-49; 3 id. 223.
34
See note 16, supra; see also 9 Holdsworth (2d ed. 1938) 203-211.
35
L'Esprit des Lois, Book XII, Chap. III.
36
'* * * take with thee one or two more, that in the mouth of two or three witnesses
every word may be established.' Matt, xviii, 16.
37
'One witness shall not rise up against a man for any inquity, or for any sin, in any
sin that he sinneth; at the mouth of two witnesses, or at the mouth of three
witnesses, shall the matter be established.' Deut. xix, 15.
38
The following is a summary, taken from the Appendix to the Government's brief, of
all cases in which construction of the treason clause has been involved, omitting
grand jury charges and cases in which interpretation of the clause was incidental:
Whiskey Rebellion cases: United States v. Vigol, C.C.D.Pa.1795, 28 Fed.Cas. page
376, No. 16,621, United States v. Mitchell, C.C.D.Pa.1795, 26 Fed.Cas. page 1277,
No. 15,788, (constructive levying of war, based on forcible resistance to execution
of a statute; defendants convicted and later pardoned). House tax case: Case of
Fries, C.C.D.Pa.1799, 9 Fed.Cas. page 826, No. 5,126; Id., C.C.D.Pa.1800, 9
Fed.Cas. page 924, No. 5,127 (constructive levying of war, based on forcible
resistance to execution of a statute; defendant convicted and later pardoned). The
Burr Conspiracy: Ex parte Bollman, 1807, 4 Cranch 75, 2 L.Ed. 554; United States
v. Burr, C.C.D.Va.1807, 25 Fed.Cas. page 2, No. 14,692a; Id., C.C.D.Va.1807, 25
Fed.Cas. page 55, No. 14,693 (conspiracy to levy war held not an overt art of
levying war). United States v. Lee, C.C.D.C.1814, 26 Fed.Cas. page 907, No.
15,584 (sale of provisions a sufficient overt act; acquittal). United States v.
Hodges, C.C.D.Md.1815, 26 Fed.Cas. page 332,
No. 15,374 (obtaining release of prisoners to the enemy is adhering to the enemy,
the act showing the intent; acquittal). United States v. Hoxie, C.C.D.Vt.1808, 26
Fed.Cas. page 397, No. 15,407 (attack of smugglers on troops enforcing embargo
is riot and not levying of war). United States v. Pryor, C.C.D.Pa.1814, 27 Fed.Cas.
page 628, No. 16,096 (proceeding under flag of truce with enemy detachment to
help buy provisions is too remote an act to establish adhering to the enemy).
United States v. Hanway, C.C.E.D.Pa.1851, 26 Fed.Cas. page 105, No. 15,299
(forcible resistance to execution of Fugitive Slave Law, 9 Stat. 462, no levying of
war). United States v. Greiner, D.C.E.D.Pa.1861, 26 Fed.Cas. page 36, No. 15,262
(participation as member of state militia company in seizure of a Federal fort is a
levying of war). United States v. Greathouse, C.C.N.D.Cal.1863, 26 Fed.Cas. page
18, No. 15,254 (fitting out and sailing a privateer is a levying of war; defendants
convicted, later pardoned). Cases of confiscation of property or refusal to enforce
obligations given in connection with sale of provisions to the Confederacy: Hanauer
v. Doane, 1871, 12 Wall. 342, 20 L.Ed. 439; Carlisle v. United States, 1873, 16
Wall. 147, 21 L.Ed. 426; Sprott v. United States, 1874, 20 Wall. 459, 22 L.Ed. 371;
United States v. Athens Armory, D.C.N.D.Ga.1868, 24 Fed.Cas. page 878, No.
14,473 (Mixed motive, involving commercial profit, does not bar finding of giving
aid and comfort to the enemy.) United States v. Cathcart and United States v.
Parmenter, C.C.S.D.Ohio, 1864, 25 Fed.Cas. page 344, No. 14,756; Chenoweth's
Case (unreported: see Ex parte Vallandigham, C.C.S.D.Ohio, 1863, 28 Fed.Cas.
pages 874, 888, No. 16,816) (indictment bad for alleging aiding and abetting
rebels, instead of directly charging levying of war). Case of Jefferson Davis,
C.C.D.Va.18671871, 7 Fed.Cas. page 63, No. 3,621a (argument that rebels
whose government achieved status of a recognized belligerent could not be held for
treason; Davis was not tried on the indictment); see 2 Warren, Supreme Court in
United States History (1934 ed.) 485-87; Watson, Trial of Jefferson Davis (1915)
25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 1903, 2
Philippine 703; United States v. De Los Rayos, 1904, 3 Philippine 349 (mere
possession of rebel commissions insufficient overt acts; strict enforcement of two-
witness requirement; convictions reversed); United States v. Lagnason, 1904, 3
Philippine 472 (armed effort to overthrow the government is levying war). United
States v. Fricke, D.C.S.D.N.Y.1919, 259 F. 673 (acts 'indifferent' on their face held
sufficient overt acts). United States v. Robinson, D.C.S.D.N.Y.1919, 259 F. 685
(dictum, acts harmless on their face are insufficient overt acts). United States v.
Werner, D.C.E.D.Pa.1918, 247 F. 708, affirmed 1919, 251 U.S. 466, 40 S.Ct. 259,
64 L.Ed. 360 (act indifferent on its face may be sufficient overt act). United States
v. Haupt, 7 Cir., 1943, 136 F.2d 661 (reversal of conviction on strict application of
two-witness requirement and other grounds; inferentially approves acts harmless
on their face as overt acts). Stephan v. United States, 6 Cir., 1943, 133 F.2d 87
(acts harmless on their face may be sufficient overt acts; conviction affirmed but
sentence commuted). United States v. Cramer, 2 Cir., 1943, 137 F.2d 888.
39
In 1942 the Office of War Information suggested to Mr. Stephen Vincent Benet a
short interpretative history of the United States for translation into many
languages. In it he says:
'It had been a real revolutiona long and difficult travail, full of hardship, struggle,
bitterness, and the overturning of old habits and customs. But it did not eat its
children and it had no aftermath of vengeance. The Hessians who stayed in the
country were not hunted down and annihilated. Some loyalists who returned were
harshly treatedothers came back and settled down peacefully as citizens of the
new state. There was neither blood bath nor purge. There was bitter political
disputebut no small group of men plotted in secret to overthrow the government
by force of arms. There were a couple of minor and local revolts, based on genuing
grievancesShays' Rebellion in 1786the Whisky Rebellion in 1794. Both collapsed
when the government showed itself able to put down rebellionand nobody was
hanged for either of them. Shays and his temporary rebels received a general
amnestythe leaders of the Whisky Rebellion were convicted of treason and then
pardoned by the President.' Benet, America, pp. 49-50.
Speaking of the War between the States he says:
'Again, there was no blood purge. There were no mass executions. No heads rolled.
'The handful of fanatics who had plotted the assassination of Lincoln and other
government leaders were executed. His actual murderer was tracked down and
shot. The half-crazy officer who commanded a notorious southern prison camp was
hanged. The former President of the Confederacy, Jefferson Davis, was kept for a
while in prison with certain of his associates and then released. But that was all.
'Not one of the great southern generals or statesmen, Lee, Johnson, Stephens,
Hampton, Longstreetwas even tried for treason.' Id., 78.
40
Apart, of course, from levying war, which is not charged in this case and is not
involved in the controversy.
41
Hallam in his Constitutional History of England (1827) said: 'Nothing had brought so
much disgrace on the councils of government, and on the administration of justice,
nothing more forcibly spoken the necessity of a great change, than the prosecutions
for treason during the latter years of Charles II., and in truth during the whole
course of our legal history. The statutes of Edward III. and Edward VI., almost set
aside by sophistical constructions, required the corroboration of some more explicit
law; and some peculiar securities were demanded for innocence against that
conspiracy of the court with the prosecutor, which is so much to be dreaded in all
trials for political crimes.' v. 2, p. 509.
Continuing, after comment on particular cases, he said: 'In the vast mass of
circumstantial testimony which our modern trials for high treason display, it is
sometimes difficult to discern, whether the great principle of our law, requiring two
witnesses to overt acts, has been adhered to; for certainly it is not adhered to,
unless such witnesses depose to acts of the prisoner, from which an inference of his
guilt is immediately deducible.' v. 2, p. 516.
42
There are, of course, rare cases where adherence might be proved by an overt act
such as subscribing an oath of allegiance or accepting pay from an enemy. These
might supplement proof of other acts of aid and comfort, but no such overt acts of
adherence are involved in this case.
43
Of course, the Constitution does not require a treason to be proved by any single
overt act. It may be grounded upon any number, each to be supported by the
testimony of two witnesses. We speak in the singular but what we say applies as
well to a series of acts or to the sum of many acts.
44
We are not concerned here with any question as to whether there may be an
offense of attempted treason.
45
The verdict in this case was a general one of guilty, without special findings as to
the acts on which it rests. Since it is not possible to identify the grounds on which
Cramer was convicted, the verdict must be set aside if any of the separable acts
submitted was insufficient. Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct.
532, 535, 75 L.Ed. 1117, 73 A.L.R. 1484; Williams v. North Carolina, 317 U.S. 287,
292, 63 S.Ct. 207, 210, 87 L.Ed. 279, 143 A.L.R. 1273. The tenth act charged, the
third submitted, was based on five falsehoods told by Cramer after his arrest to
agents of the Federal Bureau of Investigation, admittedly for the purpose of
shielding Werner Thiel. After some time he recanted the falsehoods and told the
truth. Thiel had already been taken into custody when the interviews occurred. The
prisoner contends that lying to his jailer does not constitute treason, that in the
whole history of treason no precedent can be or is cited for holding a false
statement while under interrogation after imprisonment is treason, that in any
event it amounted to no more than an attempt which was not consummated, that
there was no right to interrogate Cramer under the circumstances, and that
admissions made out of court are rendered inadmissible as proof of overt acts in
view of the requirement that the act be proved by two witnesses or by 'Confession
in Open Court.' The use of this evidence as an overt act of treason is complicated,
and we intimate no views upon it in view of reversal on other grounds. Were we to
affirm we should have first to resolve these questions against the prisoner.
46
The testimony of Norma Kopp was probably the most damaging to the prisoner.
She was a German alien who had been in the United States since 1928, but had
never become a citizen. She had long and intimately known both Cramer and Thiel
and became engaged to marry Thiel four days before he left for Germany. She
knew him to be a Nazi. She received at Westport, Conn., where she was working as
a laundry and kitchen maid, a note from Cramer, asking her to come to New York
for an undisclosed reason. She came and Cramer then, she says, told her that Thiel
was back, that he came with others, that six of them landed from a submarine in a
rubber boat in Florida, that they brought much money 'from Germany from the
German Government,' that Cramer was keeping it for Thiel in his safety deposit
box, that these men got instructions from a 'sitz' in the Bronx as to where to go,
but Cramer said he did not know what he meant by 'sitz.' Cramer said he expected
Thiel that evening at his apartment, but Thiel did not come. Cramer failed to bring
about her meeting with Thiel, as he had promised her. She was at Kolping House
when Cramer was taken into custody. The following day pictures of the saboteurs
and the story of their landing and arrest was in the newspapers. She was taken into
custody and questioned by the Federal Bureau of Investigation.
47
Cramer left a note for 'William Thomas,' the name under which Thiel was going, at
the Commodore Hotel, where he was staying, saying that Miss Kopp had come and
asking Thiel to meet them at Thompson's Cafeteria at 4:00 that afternoon or call
them at 7:00 that evening at Kolping House. Thiel had been arrested and did not
keep the rendezvous nor make the call. About 10:50 p.m. June 27, Cramer was
taken into custody at Kolping House and taken to the Bureau's headquarters in New
York. He told the agents that the man he had been with at Thompson's Cafeteria
was William Thomas, that Thomas had worked in a factory on the West Coast since
March of 1941 and had not been out of the United States. When asked if the true
name of William Thomas was not Werner Thiel, he replied that it was, and that
Thiel was using an assumed name because of difficulties with his draft board. He
stated that the money belt which Thiel had given him contained only $200, which
Thiel owed him, and that the $3500 in the safety deposit box belonged to him and
had been obtained from the sale of securities. The gravity of the offense with which
he might be confronted was intimated to Cramer, and he asked if he might speak
with agent Ostholthoff alone. To him he recanted his previous false statements and
admitted that he knew Thiel had come from Germany, probably on a mission for
the German Government, which he thought was 'to stir up unrest among the people
and probably spread propaganda.' He repeated this in the presence of other agents
and stated that he had lied in order to protect Thiel. Cramer authorized the agents
to search his room and to open his safe deposit box at the Corn Exchange Bank and
remove the contents thereof.
48
As summarized in the opinion of the Circuit Court of Appeals, these are: 'Writing
Thiel in Germany, November 25, 1941, appellant said that 'defiance, boldness, will
and sharp weapons will decided (sic) the war, and the German Army and the
German people are not lacking in these,' that he was 'very discontent' and sat here
'in pitiable comfort,' and that he had refused a job in Detroit at $100 per week
because 'I do not want to soil my hands with war work.' To his family in Germany
he wrote December 3, 1941, of 'the gigantic sacrifices which the glorious,
disciplined German Army is making from day to day for the Homeland,' that 'every
day here I hear the shrieks of hatred and the clamor for annihilation from the
hostile foreigners,' and that a lost war 'means today a complete extirpation of the
German nation.' To a friend in Chicago he wrote April 21, 1942, objecting to
conscription 'after one has spent almost half a lifetime here in the States,' and
saying 'personally I should not care at all to be misused by the American army as a
world conqueror.' All the letters were written in German.'
49
On the Government's case a witness testified that he went to Cramer's apartment,
told him that he was a representative of the United States Government on a pledge
drive and asked him if he would like to sign a pledge for a bond. Cramer said he
was not interested and, in reply to the question whether he would sign up for a
stamp, he said he was not even interested in the purchase of a 10-cent stamp. He
then closed the door. The witness rang again and Cramer opened the door again
and then closed it.
Normal Kopp testified that Cramer told her that the 'Minute Man' called at his door
'and he got kind of fresh and he closed the door at him.' Miss Kopp's testimony was
objected to and was offered as 'showing the general motive and disposition, in so
far as loyalty to the country is concerned, of this defendant,' and as probative on
the issue of intent. The court received it on the theory that incidents of that sort
might corroborate or the jury might find it corroborated certain other testimony
offered by the Government indicating a motive or intent.
50
The defendant, having testified in his own behalf, was under cross-examination. He
was asked: 'Q. Now sir isn't it the fact that you did write to Germany in the year
1941 several letters in which you discussed the United States in an unfriendly
manner? A. I do not know unfriendly. I would say that I have criticized a few
persons. I have never criticized the United States as such.' He was then asked
whether in 1941 he did not receive letters from his nephew Norbert and whether it
was not the fact that Cramer's brother, Norbert's father, 'through Norbert warned
you that your letters discussed the United States in such an unfriendly fashion that
Norbert's father feared that you would be put on the blacklist, because according to
him the letters went through an American censorship?' Objection was duly made
that the letters referred to were from someone else and could not bind the
defendant. The objection was overruled, and the witness answered: 'Well, I have
received a letter from my nephew Norbert which mentions that, I admit that.' A
motion to strike the answer was denied, and exceptions to both rulings were duly
taken.
The Circuit Court of Appeals observed that, 'Of course, these expressions of opinion
could not properly bind appellant; and the objection might wisely have been
sustained.' But it concluded that the ruling was not sufficiently prejudicial to call for
reversal.
While defendant was under cross-examination, he was asked, 'By the way, Mr.
Witness, you have testified at length here about your various studies and your
various occupations and interests. Were you ever interested in law? A. No. sir; I
was not. Q. Isn't it a fact, sir; that at one time you were particularly interested in
the law of treason? A. No, sir; I have never been interested in that.' The District
Attorney then offered a complete text of the Constitution of the United States as
printed in the New York Times in 1937. It had been found in Cramer's room and on
it were marks which he admitted making. One of the marks was opposite the
paragraph which defines treason. The District Attorney offered it for impeachment
and also contended it to be of probative force to show 'that this witness had in mind
at the time these events which are the subject of the indictment here occurred,
what the law of treason was.' Against objection the court admitted it as material
and relevant and declined to limit the grounds on which it was received.
It appears without dispute that the marks on this copy of the Constitution were
made at a time not definitely established but clearly before the United States
entered the war and when the policy of the Government was declared to be one of
neutrality.
The treason paragraph of the Constitution was one of six provisions which he
marked. Another was the provision of Article 1 of Section 7, that if any bill passed
by the Congress shall not be returned by the President within ten days after having
been presented to him, the same shall be a law. Another, the provision of Article 1,
Section 8, that Congress shall have the power to declare war, grant letters of
marque and reprisal and make rules concerning captures on land and water. A third
was Article 1, Section 9, which provides that no bill of attainder or ex post facto law
shall be passed. A fourth was that provision of Article 1, Section 9, that no title of
nobility shall be granted by the United States. Another was the portion of Article 2,
Section 1, which sets forth the President's oath.
The petitioner was naturalized in 1936, and so far as appears, came into possession
of the Constitution in 1937.
51
2 Farrand 347.
52
E.g., Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534.
53
Congress has prohibited obtaining defense information in certain ways, 50 U.S.C.
31, 50 U.S.C.A. 31; certain disclosures of information, 50 U.S.C. 32, 50 U.S.C.A.
32; certain seditious and disloyal acts in war time, 50 U.S.C. 33, 50 U.S.C.A.
33; and has enacted such statutes as the Trading with the Enemy Act, 50 U.S.C.
Appendix, 3, 50 U.S.C.A. Appendix, 3.
54
The Government's Appendix includes such examples as the following:
Danish Penal Code.'Sec. 105. One who commits an act by virtue of which a
foreign service of military intelligence is set up, or who assists directly or indirectly
in its functioning on the territory of the State of Denmark, shall be punished by
imprisonment up to two years and in cases of extenuating circumstances by
detention.'
Polish Code.'Art. 100, Sec. 1. Whoever in time of war acts in favor of the enemy
or to the damage of the Polish armed forces or allied forces shall be punished by
imprisonment not under ten years or for life.
'Art. 100, Sec. 2. If the offender unintentionally acted, he shall be punished by
imprisonment not to exceed three years or by detention not to exceed three years.'
French Code of 1939.'Art. 103. Whoever, knowing about the plans of an act of
treason or espionage, does not report them to the military, administrative, or
judicial authorities as soon as he acquired knowledge shall be punished by penalties
provided by Art. 83 for the attack on the exterior safety of the State.'
The French Code (Harboring) provides in Article 85 that every Frenchman and every
foreigner shall be punished as an accomplice or for harboring:
'(1) Who, knowing the intentions of the perpetrators of major crimes and minor
crimes against the exterior safety of the State, furnishes them subsidies, means of
existence, lodging, place of asylum or meeting place.
'(2) Who, knowingly carries the correspondence of the perpetrators of a major or
minor crime or knowingly facilitates them in any manner whatsoever in finding,
harboring, transporting, or transmitting, the objects of a major or minor crime;
'(3) Who harbors knowingly the objects or instruments which served or should
serve for the commission of the crime or offense or material objects or documents
obtained through a crime or offense.'
55
2 Farrand 348.
56
See Brooks, The World of Washington Irving, 73 n.
1
It is well established that the overt act and the intent are separate and distinct
elements of the crime of treason under the Constitution. See Ex parte Bollman, 4
Cranch. 75, 126, 2 L.Ed. 554; United States v. Burr, 25 Fed.Cas. pages 2, 13, 14,
No. 14,692a; United States v. Lee, 26 Fed.Cas. page 907, No. 15,584; United
States v. Vigol, 28 Fed.Cas. page 376, No. 16,621; United States v. Hanway, 26
Fed.Cas. pages 105, 126, No. 15,299; United States v. Greiner, 26 Fed.Cas. pages
36, 39, No. 15,262; United States v. Greathouse, 26 Fed.Cas. pages 18, 22 No.
15,254; United States v. Werner, D.C., 247 F. 708, 709, 710; United States v.
Fricke, D.C., 259 F. 673, 677; United States v. Robinson, D.C., 259 F. 685, 690;
United States v. Stephan, D.C., 50 F.Supp. 738, 742, 743, affirmed 6 Cir., 1943,
133 F.2d 87, 99. Chief Justice Marshall ruled in United States v. Burr, 25 Fed.Cas.
pages 52, 54, No. 14,692h, that it was in the discretion of the prosecutor to present
evidence of te intent before proof of an overt act. And see United States v. Lee,
supra.
2
Carlisle v. United States, 16 Wall. 147, 150, 151, 21 L.Ed. 426; Sprott v. United
States, 20 Wall. 459, 463, 464, 22 L.Ed. 371; United States v. Hodges, 26 Fed.Cas.
pages 332, 334, No. 15,374; Charge to Grand JuryTreason, 30 Fed.Cas. pages
1032, 1034, No. 18,270; see also 1 East, Pleas of the Crown (1806) pp. 7781;
Warren, What is Giving Aid and Comfort to the Enemy (1918), 27 Yale L.J. 331,
343345; Hazard and Stern, 'Exterior Treason' (1938), 6 U. of Chi.L.Rev. 77, 84,
85. But a mere showing of aid and assistance to an alien enemy permanently
residing in the United States without any showing that the enemy alien has designs
against the interest of the United States, does not without more establish an act of
treason. See United States v. Fricke, D.C., 259 F. 673, 682.
3
See note 1, supra.
1
Accord: William Gregg, 14 How.St.Tr. 1371; Trial of Dr. Hensey, 19 How.St.Tr.
1341. Both of these involved indictments for compassing and adhering, the overt
acts being letters of intelligence intercepted before they reached the enemy.
2
In a letter of April 24, 1792, Jefferson, then Secretary of State, wrote: 'Treason, *
* * when real, merits the highest punishment. But most codes extend their
definitions of treason to acts not really against one's country. They do not
distinguish between acts against the government and acts against the oppressions
of the government; the latter are virtues; yet they have furnished more victims to
the executioner than the former; because real treasons are rare, oppressions
frequent. The unsuccessful strugglers against tyranny, have been the chief martyrs
of treason law in all countries.' See 8 Writings of Thomas Jefferson (Library ed.
Wash.1903) p. 332.

G.R. No. L-99 November 16, 1945

PIO DURAN, petitioner,

vs.
SALVADOR ABAD SANTOS, Judge of People's Court, respondent.

Marciano Almario for petitioner.

Judge Salvador Abad Santos of People's Court in his own behalf.

JARANILLA, J.:

This certiorari proceeding was instituted by petitioner Pio Duran against respondent Honorable
Salvador Abad Santos, Judge of the People's Court, praying that the order of said respondent judge
of October 12 and October 15, 1945, denying him bail not set aside and that he be allowed to put up
a bail not to exceed P20,000 for his provisional release. The pertinent allegations of the petitions
are:
That the petitioner is a Filipino political prisoner under the custody of the Director of Prisons in the
New Bilibid Prison, Muntinglupa, Rizal, for not less than three months without any information having
filed against him: That the petitioner filed a petition in the People's Court for his release on bail and
that the Solicitor General recommended that the petitioner be provisionally released on P35,000 bail;
That after hearing the statements of Special Prosecutor V. D. Carpio, in representation of the
Solicitor General, and Atty. Marciano Almario, counsel for the petitioner, which statements are
contained in Appendix E of the petition, the said respondent judge denied the petition for bail on
October 121, 1945, and refused to reconsider it by his order issued on October 15, 1945; and.

That the denial of said petition is a flagrant violation of the Constitution of the Philippines and of
section 19 of Commonwealth Act No. 682, and that the respondent has committed a great abuse of
discretion for which petitioner has no other plain speedy and adequate remedy in the ordinary
course of law.

The respondent judge, in answer to the petition, denies abuse of discretion and alleges that the
reason for the denial of the petition for the release of the petitioner on bail was set forth in his order
of October 15, 1945, which reads as follows:

The detainee's adherence to the enemy as manifested by his utterances and activities during
the Japanese domination especially as Executive General of the Makapili; as Director of
General of the Kalibapi; as Vice-Minister of State for Home Affairs; member of the Council of
State; as member of the National Assembly under the Japanese-sponsored Philippine
Republic and as President of the New Leaders Association historical facts of
contemporary history and of public knowledge which the petitioner cannot deny makes the
case against him quite serious and may the necessitate the imposition of the capital
punishment.

The evidence against the petitioner, according to said Appendix E of the petition, consists of
documentary proofs received by the Office of Special Prosecutors from the Counter Intelligence
Corps (CIC), which documentary evidence is considered confidential, having been received with that
injunction from the military authorities, and so the special prosecutor who appeared at the hearing in
the court below manifested that he was not free to divulge the contents thereof. The special
prosecutor, however, mentioned in his statements before the People's Court certain facts which are
stated by the respondent judge in his answer to the petition.

It appears that the petitioner was originally detained by the United States Army, which had
investigated the acts of said petitioner and gathered the corresponding evidence; and that after the
hostilities were ended, with the formal acceptance by Japan of the terms of the Allies, the said
petitioner and the evidence gathered against him were turned over to the Commonwealth
Government and the Office of Special Prosecutors for such action as may be warranted. The said
petitioner was detained by the military authorities from July 4 to September 26, 1945, when he was
turned over to the Commonwealth Government, as may be gleaned from Appendix A filed by him in
this case. As a military political prisoner, he could not be bailed out. Now he invokes the provisions
of Commonwealth Act No. 682 creating the People's Court and the Office of Special Prosecutor and
specifically section 19 of said Act, said section reads partly as follows:

. . . Provided, however, That existing provisions of law to the contrary notwithstanding, the
aforesaid political prisoners may, in the discretion of the People's Court, after due notice to
the Office of Special Prosecutors and hearing, be released on bail, even prior to the
presentation of the corresponding information, unless the Court, finds that there is strong
evidence of the commission of a capital offense . . .
As may be seen the above express provision of law, the release of a detainee on bail, "even prior to
the presentation of the corresponding information," is purely discretionary on the People's Court find
that there is strong evidence of the commission of a capital offense," in which case no bail whatever
can be granted, as the provision appears mandatory. In other words, aside from that, the People's
Court has the absolute discretion to grant bail or not. Having invoked the clear provision of said
section 19 of Act No. 682 for his temporary release on bail, the petitioner cannot attack it as being
illegal or unconstitutional. And it appearing that his case is covered by said exception of the law, it
must be held that he cannot be admitted to bail.

But even if we should concede counsel's contention, for the sake of argument, that the People's
Court has not been given that discretion to deny bail to the petitioner, still the conclusion of the
respondent judge is not unfounded for the following reasons:

First, the special prosecutor stated that the information to be filed in the case would be for treason,
which is "the highest of all crimes" (In re Charge to Grand Jury, 30 F. Cas., No. 18, 269; 2 Curt., 530;
U. S. vs. Lagnason, 3 P. R. A. 247; 3 Phil., 472, U. S. vs. Abad, 1 Phil., 437), penalized with capital
punishment under article 114 of the Revised Penal Code; and

Secondly, the recital by the special prosecutor of the supposed acts committed by the petitioner and
referred to by the respondent judge in his order of October 15, 1945, above quoted, which acts were
not rebutted by counsel for the petitioner at the hearing on the petition for bail, supports the
conclusion and ruling of the People's Court.

It is true that during the oral argument in this case counsel for the petitioner denied the imputation
that the petitioner was the Executive General of the "Makapili," but he openly admitted that at the
hearing before the People's Court he did not make any effort to deny or disprove the said imputation
or the others appearing in Appendix E of the petition. In view thereof, how can we expect the
People's Court not to take into consideration what had been stated then, appearing in said Appendix
E?

Counsel's contention that there was strong have presented evidence to prove that there was strong
evidence of the commission of a capital offense before People's Court could deny bail in this case
was substantially complied with, although the information charging the commission of the crime of
treason had not as yet been filed. We are of the opinion and so hold that hearing set and held for the
purpose (see Appendix E) was amply sufficient for the People's Court to be informed and to
determine whether there was strong evidence of the commission of a capital offense. The special
prosecutor clearly informed the People's Court in the presence of the adverse counsel, in part, as
follows:

. . . I understand strict assurance has been made that all witnesses required to make a
testimony will be considered secret, and that their statements will be held strictly confidential
and if we have to answer that question as propounded by the Court, as I have said, I would
be violating the injunction given to us to consider those documents as confidential. I may
venture, however, to explain by stating several facts which we believe are so well known not
only by the Court or by the Office of the Special Prosecutors by the people as a whole, which
no one can deny, not even the detained petitioner or anyone else, and those facts are as
follows: That the petitioner herein was a member of the Council of the State during the
Japanese occupation. He was the Director of General Affairs of the Kalibapi. He was elected
member of the National Assembly under the puppet Republic. He was Vice-Minister of State
for Home Affairs. He was the Executive General of Makapili. Lastly, he became President of
the New Leaders Association. These facts, I repeat, are things which I venture to say neither
the petitioner nor anyone else can dare deny and therefore, l feel free to divulge without any
violation of trust or confidence. Furthermore, I can state with assuredness that among the
articles of association of the Makapili, of which the petitioner was the Executive General, it is
stated: "To fight the common enemies side by side with other Asians on any front in the
present war." Another: "To collaborate unreservedly and unstintedly with Imperial Japaneses
Army and Navy in the Philippines in such a way and means as may, in the joint judgment of
the Imperial Japanese forces and the association (association meaning Makapili) be deemed
necessary and fruitful."

The case of the petitioner herein by reason of his prominence in social political and court
circles is such that this case has assumed pre-eminence and interest of tremendous
proportion not only in this country but perhaps even in the United States all by reason
known associations, connections and statements made by the detained petitioner publicly
and privately in his advocacy of the Greater East Asia Co-Prosperity Sphere and his
advocacy of Japan as the leading nation in the Orient in the proposed Asiatic Monroeism on
which he had been working for so many years before and during the war, and I take it for
granted even now. And no one can dispute the facts that in his advocacy of this program
aforesaid the petitioner has made statements, as follows: "The flight, of MacArthur once
again shows that the White men's in East Asia is mercenary and imperialistic. He comes to
exploit the people and the natural resources, fill his pockets with as much wealth as can be
obtained irrespective of the means, and later return to his own native land to spend the
declining years of his life in comfortable indolence. He cares not for the defense of any of the
colonies he may have acquired. At first sign of danger he pacts his bag and baggage and
runs away, leaving the native inhabitants to whatever fate awaits them." This appears in an
article written by the detained petitioner in the Tribune of March 22, 1942.

Further, the detained petitioner has said: "We, who have always doubted the sincerity of
occidental disinterestedness in Asia, adhere to the theory that it is only through the unified
efforts of all of all Asiatics that the complete emancipation not only of the Philippines but of
all Asia may be achieved, that is why we are co-operating solely and wholeheartedly with the
Japanese military administration and urge our countrymen to do same." That come from a
radio speech, reported in the Tribune of May 6, 1942.

Again, the detained petitioner has stated: "With the Japanese spirit moving the one hundred
million people of Japan, who are solidly behind the prosecution of the Greater East Asia War
to a successful end, the Great Empire of Japan cannot be beaten in the current war." That
also came from an article reported in the newspaper, Tribune, July 7, 1942.

And on January 30, 1945, there appeared an article in the Tribune an item, as follows:
"Lingayen front, Jan. 27. Makapili members thrust into American lines following the
landing of the invaders in the Lingayen, gulf shores, it was revealed here. Forming death
defying squads, these youthful Filipinos stormed into enemy lines with fixed bayonets
causing heavy casualties among the Americans."

Up to the present time, the Office of Special Prosecutors has not the material time to check
up all the evidence submitted to us by the military authorities. There are more than 4,000
such cases in our hands aid unless we are given enough time it will be very hard for us to go
over this particular case. Right now, it our conviction that the evidence against the petitioner
is rather convincing. Neither have we formulated the necessary information; but I venture to
say that when we file the necessary information to the Court it would not be for a simple
crime but for treason. I submit, however, the foregoing facts as above stated to give the
Court an idea of the nature of the evidence that will in due time be adduced in support of the
information that we will file. (See Payao vs. Lesaca, 63 Phil., 210.)
In view of the foregoing, it cannot be stated that the petitioner has been deprived of his liberty
without due process of law, because his petition for bail had been set for hearing and he was given
an opportunity to be heard when the above circumstances were submitted to the People's Court,
where it was made to appear satisfactorily that he was being detained due to highly treasonable
activities against the Commonwealth of the Philippines and the United States, which activities would
be charged in the information for a capital offense and punishable by death, and that the evidence in
the case strong.

Wherefore, we find and so hold that the petition is without merit and therefore the same is hereby
ordered dismissed with costs against the petitioner. So ordered.

Feria, De Joya, and Pablo. JJ., and Buenaventura and Santos, JJ., concur.

Separate Opinions

DE LA ROSA, Magistrado Interino, concurrente:

Concurro y voto con la mayoria, en cuanto al resultado.

El Tribunal del Pueblo, al senalar y celebrar vista sobre la solicitud de fianza del recurrente,
concediole, asi como al procurator General, oportunidad de ser oido, y habiendo llegado despues a
la conclusion de que existen pruebas vehementes sobre la comision de un delito grave, no infringio
la Constitucion ni Ley No. 682 al denegar dicha solicitud.

Lo que se ha hecho en el presente caso, en que el Fiscal informo sobre la naturaleza grave del
delito que se imputa y las pruebas con que se cuenta para sostener con eficacia la querella que en
su tiempo seria presentada por el mismo, la relacion de las cuales es suficietemente clar para
convecer preliminarmente al Tribunal, constituye una vista regular para la sustanciacion de una
solicitud para la libertad provisional, bajo fianza, de un detenido. No era necesario que el Fiscal
presentara todas sus pruebas o que se practicase una investigation previa o preliminar, porque en
el primer caso hubiera sido tramitar la causa en su fondo y en el segundo el articulo 22 de la Ley
No. 682 no lo require.

. . . a preliminary examination and/or investigation shall not be required.

Es solo aparente la desarmonia que se arribuye entre el articulo 19 de la Ley No. 682, en su parte
que provee:

. . . Provided, however, That existing provisions of law to the contrary notwithstanding, the
aforesaid political prisoners may, in the discretion of the People's Court, after due notice to
the Office of the Special Prosecutors and hearing, be released on bail, even prior to the
presentation of the corresponding information, unless the Court finds that there is strong
evidence of the Commission of a capital offense . . .

y la seccion 16 del Articulo III de la Constitucion, que preceptua:

All persons shall before conviction be bailable by sufficient sureties, except those charged
with capital offenses when evidence of guilt is strong.
La frase "Provided, however, That existing provisions of law to the contrary notwithstanding," de la
parte acotada del articulo 19 de la Ley No. 682, explica que solo se refiere a las leyes del Congreso,
que el Congreso puede deshacer, sin abarcar las disposiciones constitucionales, que el Congreso
no puede invalidar. Ademas como hay que interpretar esa parte de la Ley No. 682 en su espiritu y
sin perder de vista los derechos individuales, resulta una parafrasis del precepto constitucional que
de una manera clara reconce el derecho a la libertad provisional, bajo fianza, cuando la imputacion
no es por un delito grave, caso en el cual es discrecional para el juez el otorgarlo o no.

Si a la expresada parte de la Ley No. 682 se diese una interpretacion literal, el Tribunal del Pueblo
tendria, en los casos en que penden cargos por delitos no capitales, la absoluta discrecion para
conceder o no libertad provisional bajo fianza antes o despues de la presentacion de la
coresspondeinte querella fiscal, por lo mismo que en ello no establece distincion alguna. Mas aun:
la oracion "even prior to the presentation of the corresponding information," denota que dicha
dispocicion, si es aplicable antes de la presentacion de la querella, lo es mas despues de su
archivo. Las leyes del Commonwealth han ido paralelamente con el progresohumano en cuanto
concierno al goce del la otra. No seria ahora justo atribuir a esta Ley no. 682 un motivo reaccionario.

Desmenuzando el texto del expresado precepto constitucional, se halla que la disposicion "all
persons shall before conviction be bailable" es amplia y abarca tanto al que acaba de ser detenido
como a aquel contra quien ya se ha presentado denuncia o querella; y, asimismo, la palabra
"charged" es lata, porque a ninguna persona se le detiene sin cargo, formulado o no formulado
todavia ante los tribunales.

En esto ilustra este precedente:

B. Right to releases in bail. 1. At common law. By the common law all offenses, including
treason, murder, and other felonies, were bailable before indictment found, although the
granting or refusing of each bail in case of capital offense was a matter within the discretion
of the court. (6 Corpus Juris, 953.)

PERFECTO, J., dissenting:

The action by the majority will surely dampen the enthusiasm, the ecstatic the rapturous exultation
with which all the generous spirits the world over received the news of the end of the war on
September 2, 1945, not because of the Allied victory in the global struggle, but because the great
principles of human freedom, the sublime tenets upon which the worth of each individual, man,
woman, and child, is established, the elemental ideas universally recognized as underlying the basic
meaning of mankind's dignity, once again, triumphed against the forces of darkness.

Human liberty suffered a crushing blow. It seems that the struggle for human liberty must be fought
all over again.

"With the formal surrender of the Japanese Empire today, September 2, 1945, the long and terrible
war is at an end," said President Osmea in an official message to the Filipino people, adding: "Our
effort has been devoted ward the paramount task of winning the war. Today the task is done. We
must devote ourselves to the task of winning the peace." (41 Off. Gaz., Sept. 1945, p. 499.) But that
peace cannot be won until and unless the fundamental human freedoms for which millions of lives
were offered in the recent gory holocaust are firmly secured and guaranteed.
More than two millennia ago the following words were written in the pages of the Book of Books,
held the most sacred by the most civilized countries in two hemispheres: "Proclaim liberty throughout
all the land unto all habitants thereof: it shall be a jubilee unto you; shall return every man unto his
possessions, and ye shall return every man unto his family." (Leviticus, 25:20.)

Are we Christians? Do we believe in the teachings of the Bible? Have we faith in the biblical
doctrines which are the vitalizing essentials of the Democracy? How can we" return every man unto
his family" if we deprive him of his personal freedom in utter violation of the cardinal mandates of our
Constitution, wherein it is solemnly enjoined that "No person shall be deprived of his liberty without
due process of law"? How can we "Proclaim liberty throughout all the land unto all the inhabitants",
when we are keeping in bondage one of the citizens of our country in complete disregard of the laws
of the land?

Those of us who have descendants and hope that they will continue living in this land, create
families, bear children, and perpetuate our lineage in unending generations, cannot look without
grate concern at the pernicious consequences of the legal ideology or lack of ideology which permits
the wanton trampling of human liberty, such a this case discloses. We shudder at the thought of the
dangers to personal security and freedom which the future holds as a despairing promise of doom to
our most cherished ideals and aspirations for the happiness of our loved ones, in whose arteries and
veins, when the sorrows and preoccupations and joys of our own life will be eternally silenced within
the folds of cerement, will continue flowing the life-giving streams of our own blood, by which we will
attain a kind of immortality in the unconscious working and endeavors for the perpetuation of the
species.

"Can the liberties of an nation be thought secure" asked Jefferson " when we have removed
their only firm basis, a conviction in the mind of the people these liberties are of the gift of God? That
they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that
God is just; that his justice cannot sleep forever; that considering numbers, nature and natural
means only, a revolution of the wheel of fortune, an exchange of situation is among possible events;
that it may become a probable by supernatural interference. The Almighty has no attribute which can
take sides with us in such as a contest."

That is why he wrote in the Declaration of Independence of the United States these immortal words.
"All men are created equal, they are endowed by their Creator with certain unalienable right; among
these are life, liberty and the pursuit of happiness. To secure these rights governments are
instituted, deriving their power from the consent of the governed. Whenever any form of government
becomes destructive of these ends, it is the right of the people to alter it."

We borrow the following from Senator Elbert D. Thomas:

"Had the social and political significance of Jesus's teachings of the worth of the individual soul
borne its fruit in the practice of the Church, the world might long ago have seen a lasting free
society. For Jesus, all men were brothers and equally precious in the sight of God, their Father. Jew
and Gentile, bond and free, black and white, each was free to work out his own salvation. In the
realm of the spirit the early Christian philosophy exalted the individual, giving him freedom to choose
and to 'bear testimony.'"

The torch of freedom has often bee lighted; it has been burned brightly for brief periods. The flame
has been often burned low, sometimes flickered, but has never been quite extinguished. Always
again it has been raised, here in the cause of religious liberty, there in the cause of political freedom.
It remained for the founders of the American Republic to plan a society wherein all phases of
freedom, of religion, of speech, and of person, should become a reality. And Thomas Jefferson, as
the embodiment of the spirit of Americanism, combining in himself the zeal of all the past apostles of
freedom, thus becomes one of the world's great leaders in man's ancient quest. Because he
gathered together the aspirations of all the fighters for freedom who had gone before, all phases of
liberty were equally important to him. Building upon the foundation laid throughout all past ages, he
became America's first world citizen." (Thomas Jefferson, World Citizen, p. 142.)

Convinced that the principles of human liberty are imperishable, we write this opinion as an appeal
to the sense of justice of the majority.

We must not allow our personal experience during the more than three years of enemy occupation,
our own sufferings under the brutal Nippon regime, our feelings towards those who blindly or
malignantly collaborated with our oppressors, our prejudices against those who in any way helped
the Japanese, to sway our judgment in considering the merits of the case.

All of us have grievances to complain. We, who were fortunate enough to have survived are
mourning for the loss of loved ones, near or distant relatives, friends. All of us were witnesses of the
most abhorrent acts committed by Japanese myrmidons, spies, tools and agents. The ruins in
Manila are constant reminders of a hated recent past. The thousands who lay buried in the debris
will not breathe again the breath of life. It is therefore natural that we should feel very strong feelings
as a result of the bitter experience. It is natural that many things will be seen by us through the
colored prism of such feelings. On the other hand, we have our sworn duty to do justice with
absolute impartiality. The task is not easy. But it is our inescapable duty to do it, no matter what our
feelings and prejudices to impede us to be equal to our official functions as judges.

We must keep always in mind that political offenses are sure to arouse popular emotions,
sometimes uncontrollable. The mob psychology is very contagious. Justices and judges must guard
against the effects of such contagion. That is the reason why Congress, in creating the People's
Court, made it collegiate, a measure which it considered necessary to place the accused of political
offenses, with the special protection, in the same category as other accused in the matter of the
protection of their substantial right in their trials. The protection is special, but it was devised to make
more effective the equal protection of the laws and to avoid discrimination against alleged political
offenders.

We may loathe the role petitioner played under the Japanese regime with all the energies of our
soul. We might not forget what he, did or said with respect to important matters which were of
paramount importance to us as Filipinos. But in the discharge of our judicial functions it is our
imperative duty to set aside our sympathies and aversions, lest we incur in the same pernicious
ideology we detest in the Japanese and those who collaborated with them. Complete detachment
from our personal likes and dislikes in an indispensable element if we should administer real justice.
Law and justice have no personal feelings. Justice has been represented as a blindfolded lady. Right
and wrong have no nationalities, political attachments, or prejudices. We must judge the petition,
forgetting who the petitioner is. If the petition is right, it must be granted no matter how we may
abhor the petitioner or his acts. If the petition is wrong, it must be denied no matter how we may
sympathize with the person or with his lot.

The Constitution of Nazi Germany and the Constitution of Fascist Japan, by express provisions,
guarantee the personal freedom of their respective citizens. The guarantees are substantially the
same as those written in the Philippine Constitution, only with not so nice and perfect details. If the
letter of the German and Japanese Constitution is complied with, the personal liberty of their citizens
will be substantially secure. But those guarantees in the hands of German and Japanese authorities
are just scraps of paper, the same as international treaties and conventions. In such ignoring of
constitutional guarantees consist, among others, the radical difference between totalitarianism and
democracy, between autocratic government and regimes of liberty.

During the enemy occupation we never compromised with the Japanese. But now that the beaten
enemy has been ousted from our country, are we to adopt their hated procedures of trampling upon
the constitutional guarantees for the liberties of our people and citizens? Shall we borrow their
ideology? Shall we adopt their way of thinking?

In dealing with this case, we must forget who the petitioner is, and remember only the sanctity of the
law, the sacredness of our Constitution. Even the Jew in the middle ages was made by Shakespeare
to exclaim: "I crave the law." Shylock says, besides: "If you deny me, file upon your law; There is no
force in the decrees of Venice," A human wreck, a derelict, does not, for the reason of his condition,
lose his rights under our laws. A supposed criminal is entitled to legal protection. Whatever we might
think or feel against the petitioner, whatever our personal prejudices are, it is our duty not to deny
him what the law recognizes as due him.

We have, we must have, a government of laws. The equal protection of the laws shall not be denied
to anyone, rich or poor, old or young, wise or fool, man or woman, noble or lowly, prince or
tatterdemalion, saint or depraved, patriot or traitor, citizen or man without country.

Whatever imputations can be hurled against the petitioner, and seems all that could be made
were already stated by the special prosecutor before the court below we cannot form upon him a
concept worse than the world has formed against the German archcriminals, those responsible,
among others, of the grisly slaughterhouses of the Maidanek, Dachau and Buchenwald, of the
attempted mass wiping out of whole racial groups, the crime newly designated as "genocide." Put
those archcriminals are not being denied the fundamental rights to have fair trial, to be defended by
attorneys to present their evidence, because the denial of such fundamental rights, universally
recognized by the civilized world, will shock the conscience of humanity. Even the repellent General
Yamashita, the man most hated by the Filipinos, is well fed, is provided with all facilities to defend
himself, is allowed to cross-examine the witnesses for the prosecution, and will be allowed to testify
and offer evidence. Is there any reason for giving petitioner herein a deal worse than those
monstrous archcriminals, whose crimes stagger our imagination? The ability to do justice even to
enemies and to persons we hate is precisely one of the inherent virtues of democracy. It is one of its
characteristics making it essentially different from autocracies and dictatorships.

At this moment we cannot refrain from repeating the words the outstanding philosopher-jurist Jhering
wrote in his little big book, "The Struggle for Law ":

" 'I crave the law.' In those four words, the poet has described the relation of law in the subjective, to
law in the objective, sense of the term meaning of the struggle for law, in a manner better than any
philosopher of the law could had done it. These four words change Shylock's claim into a question of
the law of Venice. To what mighty, giant dimensions, does not the weak man grow, when he speaks
these words: It is no longer the Jew demanding his pound of flesh; it is the law of Venice itself
knocking at the door of Justice; for his rights and the law of Venice are one and the same; they both
stand or fall together. And when he finally succumbs under the weight of the judge's decision, who
wipes out his rights by a shocking piece of pleasantry, when we see him pursued by bitter scorn,
bowed, broken, tottering on his way, who can help feeling that in him the law of Venice is humbled;
that it is not the Jew, Shylock, who moves painfully away, but the typical figure of the Jew of the
middle ages, that pariah of society who cried in vain for justice? His fate is eminently tragic, not
because his rights are him, but because he, a Jew of the middle ages, has faith in the law we
might say just as if we were a Christiana faith in the law firm as a rock which nothing can shake,
and which the judge himself feels until the catastrophe breaks upon him like a thunderclap, dispels
the illusion and teaches him that he is only the despise medieval Jew to whom justice is done by
defrauding him.

"The picture of Shylock conjures up another before may mind, the no less historical than poetical
one of Michel Kohlhaas, which Heinrich von Dleist has described in his novel of that name with all
the fascination of truth. Shylock retires from the scene entirely broken down by grief; his strength is
gone and he bows without resistance to the decision of the judge. Not so Michel Kohlhaas. After
every means to obtain his rights, which have been most grievously violated, has been exhausted;
after an act of sinful cabinet justice has closed the way of redress to him, and Justice herself in all
her representatives, even to the highest, has sided with injustice, a feeling of infinite woe overpowers
him at the contemplation of the outrage that has been done him and he exclaims: 'Better be a dog, if
I am to be trampled under foot, than a man'; and he says: The man who refuses me the protection of
the law relegates me to the condition of the savage of the forest, and puts a club in my hand to
defend myself with." He snatches the soiled sword out of the hand of such venal Justice and
brandishes it in a manner that spreads consternation far and wide through the country, causes the
Sate to shake to its very foundations and the prince to tremble on his throne. It is not, however, the
savage feeling of vengeance that animates him; he does not turn murderer and brigand, like Karl
Moor, who wishes "to make the cry of revolt resound through all nature to lead into the fight against
the race of hyenas, air, earth and sea," whose wounded feeling of justice causes him to declare war
against all humanity; but it is a moral idea which urges him forward, the idea that "it is his duty to
entire world to consecrate all his strength to the obtaining of satisfaction and to the guarding of his
fellow-citizens against similar injustice." To this idea he sacrifices everything, his family's happiness,
the honor of his name, all his earthly possessions, his blood, and his life; and he carries on no
aimless war of extermination, for he directs it only against the guilty one, and against all those who
make common cause with him. At last, when the hope of obtaining justice dawns upon him, he
voluntarily down his arms; but, as if chosen to illustrate by example to what depth of ignominy the
disregard of law and dishonor could descend at that time, the safe conduct given him, and the
amnesty are violated, and he ends his life on the place of execution. However, before his life is taken
from him justice is done him, and the thought that he has not fought in vain, that he has restored
respect for the law and preserved his dignity as a human being, makes him smile at the horrors of
death: and, reconciled with himself, the world, and God, he gladly and resolutely follows the
executioner. What reflections does not this legal drama suggest: Here is an honest and good man,
filled with love for his family, with a simple, religious disposition, who becomes an Attila and destroys
with fire and sword the cities in which his enemy has taken refuge. And how is this transformation
effected? By the very quality which lifts him morally high above all his enemies who finally triumph
over him; by his high esteem for the law, his faith in its sacredness, the energy of his genuine,
healthy feeling of legal right. The tragedy of his fate lies in this that his ruin was brought about by the
superiority and nobility of his nature, his lofty feeling of legal right, and his heroic devotion to the
ideal law, which made him oblivious to all else and ready to sacrifice everything for it, in contact with
the miserable world of the time in which the arrogance of the great and powerful was equaled only
by the venality and cowardice of the judges. The crimes which he committed fall much more heavily
on the prince, his functionaries and his judges who forced him out of the way of the law into the way
of lawlessness. For no wrong which man has to endure, no matter how grievous, can at all compare,
at least in the eyes of ingenuous moral feeling, with that which the authority established by God
commits when itself violates the law. Judicial murder is the deadly sin of the law. The guardian and
sentinel of the law is changed into its murderer; the physician strangles his ward. In ancient Rome,
the corrupt judge was punished with death. For the justice which has violated the law there is no
accuser as terrible as the sombre, reproachful form of the criminal made a criminal by his wounded
feeling of legal right it is its own bloody shadow. The victim of corrupt and partial justice is driven
almost violently out of the way the executor of his own rights, and it not infrequently happens that,
overshooting the mark, he becomes the sworn enemy of society, robber and a murderer. If, like
Michael Kohlhaas, his nature be noble and moral, it may guard him satisfaction. Here the struggle
for law becomes a criminal, and by suffering the penalty of his crime, a martyr to his feeling of legal
right. It is said that the blood of martyrs does not flow in vain, and the saying may have been true of
him. It may be that his warning shadow sufficed for a long time to make the legal oppression of
which he was victim an impossibility.

"In conjuring up this shadows, I have desired to show by a striking example how far the very man
whose sentiment of legal right strongest and most ideal may go astray when the imperfection of legal
institutions refuses him satisfaction. Here the struggle against the law. The feeling of legal right, left
in the lurch by the power which should protect it, itself abandons the ground of the law and
endeavors, by helping itself, to obtain what ignorance, bad will, or impotence refuse it. And it is not
only a few very strong and violent characters, in which the national feeling of legal right raise its
protest against such a condition of things, but this protest is sometimes repeated by the whole
population under certain forms, which according to their object or to the manner in which the whole
people or a definite class look upon them, or apply them, may be considered as popular substitutes
for, and accessories to, the institutions of the state."

I. ELEMENTAL PRINCIPLES OF LAW ON PERSONAL LIBERTY

Be proceeding further, we must be allowed to remember some of the elemental principles of law on
personal liberty.

The right of personal liberty consist in the power of locomotion, of changing situation, or moving
one's own inclination may direct without imprisonment or restraint, unless by due course of law. (1
Bl. Com., 135; Butchers' Union, etc., Co. vs. Crescent City, etc., Co., 111 U.S. 746; 28 Law. ed.,
585; In Matter of Jacobs, N.Y., 98.)

This right is a natural one such as has ever been the birthright of every freeman, even in those ages
before civilization had exercised its softening influence upon man's passions, and is now guarded
with jealous care by that inexorable mistress, "the law of the land." (The Trustees of Dartmouth
College vs. Woodward, 4 Wheat. [U.S.] 518; 4 Law. ed., 629.)

Due process of law means that whatever the legal proceeding may be, it must be enforced by public
authority, whether sanctioned by age or custom, or newly devised in the discretion of the legislative
power, in furtherance of the general public good, which regards and preserves the principles of
liberty and justice. (Hurtado vs. California, 110 U. S., 516; 28 Law. ed., 232; Roowan vs. State 30
Wis., 129; King vs. Berchet, 1 Show. [Eng. K. B.], 106; R. vs.Ingham, 5 B. & S. (Eng. Q. B.), 257;
Westervelt vs. Gregg, 12 N. Y., 202; Bank of Columbia vs. Ikely, 4 Wheat. [U, S.], 235; 4 Law. ed.,
559; Brown vs. Levee Commissioners, 50 Miss., 468; Davidson vs. New Orleans, 96 U.S., 97; 24
Law. ed., 616.) lt means that neither life, that neither life, liberty, nor property can be taken, nor the
enjoyment thereof impaired, except in the course of the regular administration of the law in the
established tribunals. (Ex parteVirginia, 100 U. S., 366; 65 Law. ed., 686.)

Therefore an arrest without a warrant, where one is required by law, is not due process of law.
(Muscoe vs. Com., 86 Va., 443, 10 S. E., 534; State vs. James, 78 N. C., 455;
Trustees vs. Schroeder, 58 Ill., 353.) But if there is likely to be a failure of justice for want of a
magistrate to issue a warrant, an officer may arrest without a warrant. (Dixon vs. State, 12 Ga. App.,
17; 76 S. E., 537.) Waters vs. Walkover Shoe Co., Ga. ; 82 S. E., 537.) And an arrest without a
warrant, where one is necessary, may be waived by the defendant pleading guilty to the complaint
contained in a subsequently issued warrant. (People vs. Lowerie, 163 Mich., 514; 128 N. W., 741.)

Where a warrant is required by existing laws, an authority to arrest without a warrant cannot be
implied from a general grant to a municipality of power to arrest.(Gunderson vs. Struebing, 125 Wis.,
173; 104 N. W., 149.)
Relating to the higher crimes, due process of law is said to denote a lawful indictment or
presentiment of good and lawful men, (Coke, 2d Insti., 50; affirmed in Jones vs. Robbins, 8 Gray
[Mass.], 329, in which see dissenting opinion by Justice Merrick; disaffirmed in
Hurtado vs. California, supra cit., in which see dissenting opinion by Justice Harlan. See
also Taylor vs. Porter, 4 Hill [N.Y.], 140; Hoke vs. Henderson, 4 Dev. [N.C.], 1; Jones vs. Perrey, 10
Yerger [Tenn.], 59; 3 Story on Const. U.S. 661; 2 vs. Kent's Com., 13; Saco vs. Wentworth, 37 Me.,
172; Emerick vs.Harris, 1 Binn.,[Pa.], 416; Murphy vs. People, 2 Cow. [N.Y.] 815; Jackon vs. Wood,
2 Conn., 819; Beers vs. Beers, 4 Conn., 535) and a public trial, before a court of competent
jurisdiction. Therefore, where the court at the trial of one charged with murder, directed an officers to
stand at the door of the court-room "and see that the room is not overcrowded, but all respectable
citizens be admitted, and have an opportunity to get in when they shall apply," it was held that the
right of the accused to a public trial, guaranteed to him by the constitution, had been violated.
(People vs. Murray, 89 Mich., 276; 50 N.W., 995.)

The government has the right to control its subjects up to that point where society is safe, but it has
no right to go beyond the point of safety. (Position of Ferrier, 103 II., 373.) Any law which restrains a
man from doing mischief to his follow-man increases the personal liberty mankind, but every wanton
and causeless restraint of the will of the subject is a degree of tyranny. (1 Bl. Com. 126.)

It is one of the most commendable features of our republican form a government that our equal just,
and impartial, and that the humblest member of the society has rights for the infraction of those
rights, that are not exceeded by the rights or remedies of any other man, no matter how high his
station. No officer of the law can with impunity, set those rights at defiance. All officers of the
government, from the highest to the lowest, are creatures of the law, and are bound to obey it.

It is, therefore, removed from the whim of ignorance of any magistrate to issue, or of any person to
serve legal process whatever unless the provisions of law be strictly followed; and any restraint of a
person, to serve any legal process of law, amounts to a false imprisonment, for which both
magistrate and officer may be liable in damages to the to the person deprived of his liberty, and the
imprisonment may also be made the subject of a criminal prosecution. (Fisher vs. McGirr, 1 Gray
[Mass.], 45; Stetson vs. Packer, 7 Cush [Mass.], 564; Stephens vs. Wilkins, 6 Pa. St., 260;
Emery vs. Hapgood, 7 Gray [Mass.], 55; Rafferty vs. People, 69 Ill., 11; Gurney vs. Tufts, 37 Me.,
130; Wise vs. Withers, 3 Cranch [U. S.], 337; 2 Law. ed., 559; Entick vs. Carrington, 2 Wils. [Eng.
C.P.], 275; Groome vs. Forrester, 5 M. & S. [Eng. K.B.], 314; Allen vs. Gray, 11 Conn., 95.)

A magistrate who illegally issues a warrant without a sworn complaint is liable for trespass on an
arrest made on such warrant, and he cannot justify by showing that he had a reasonable suspicion
that an offense had been committed. (McGuinness vs. Da Foe, 3 C.C.C. [Can.], 139;
Campbell vs. Welsh, 18 C.C.C. [Can.], 316; Papillo vs.R., 20 C.C.C. [Can.], 329.)

II. THE FACTS IN THIS CASE

With the above legal axioms in mind, let us consider the facts in this case.

Petitioner alleges that he is a Filipino political prisoner detained in the New Bilibid Prison in
Muntinglupa, under the custody of the Director of Prison; that on October 4, 1945, he filed with the
People's Court a petition for a writ of habeas corpus, with allegations and prayer for provisional
release on bond, in case his absolute freedom cannot be, for some reason, granted; that on October
5, 1945, he withdrew said petition for a writ of habeas corpus in order to stand solely on his
allegations and petition for provisional released on bond; that on October 6, the Solicitor General
submitted a recommendation to the People's Court to allow petitioner to be released provisionally on
a bail P35,000, "on the strength of the evidence" in his possession; that respondent Judge issued an
order setting the case for hearing on October 8, requiring the Solicitor General to appear at said
hearing "for the purpose of giving such information to the Court as may enable it to determined
whether the case is bailable or not and, if bailable, what amount should be required; that at the
hearing Special Prosecutor V. D. Carpio, representing the Solicitor General, manifested that he
refused to reveal their evidence, adding that they cannot certify to the degree of truthfulness of said
evidence for the reason that they have not been able to check them up, but then recited a series of
charges against the petitioner, which according to him, were of public knowledge; that petitioner filed
a memorandum citing the doctrine established by the Supreme Court in the case of People vs.
Marcos (G.R. No. 46490); that on October 1, respondent Judge issued an order denying the petition
for provisional release on bail without stating any reason in support thereof; that immediately upon
receipt of said order, petitioner filed a motion for reconsideration based on three grounds, namely:
(a) that the Solicitor General recommended that petition be granted upon on a bail of P35,000; (b)
that the Solicitor General did not reveal any evidence against the petitioner; (c) that refusal to
disclose such evidence entitled petitioner to bail; and that on October 15 the motion for
reconsideration was denied.

In the order of denial respondent judge stated the following grounds:

"The detainee's adherence to the enemy as manifested by his utterances and activities during the
Japanese domination specially as Executive General of the Makapili; as Director of General Affairs
of the Kalibapi; as Vice-Minister of State for Home Affairs; as member of the Council of State; as
member of the National Assembly under the Japanese sponsored Philippine Republic, and as
President of the New Leaders' Association historical facts of contemporary history and of public
knowledge which the petitioner cannot deny makes the case against him quite serious and may
necessitate the imposition of the capital punishment."

It is contended by petitioner that the action of the respondent is a deliberate transgression of the
fundamental law of the land, invoking for said purpose the following:

All persons shall before conviction be bailable by sufficient sureties, except those charged
with capital offenses when evidence of guilt is strong. Excessive bail shall not be required.
(Art. III sec. No. 16, Constitution of the Philippines.)

Petitioner invokes, too, the provision of section 19 of Commonwealth Act No. 682, creating the
People's Court, wherein it is provided that "existing provisions of law to the contrary notwithstanding,
the aforesaid political prisoners may, in the discretion of the People's Court, after due notice to the
Office of Special Prosecutors and hearing, be released on bail, even prior to the presentation of the
corresponding information, unless the Court finds that there is strong evidence of a capital offense."

It is also alleged by petitioner that he is being detained for no less than three months and no
information has been filed against him so far.

In the petition it is prayed that the orders of the respondent Judge of October 12 and October 15, be
annulled, and respondent be directed to enter a new order granting the petition for the provisional
release of petitioner on bail not to exceed P20,000.

III. PETITIONER IS DETAINED WITHOUT DUE PROCESS OF LAW

The recital of the undisputed facts of this case shows conclusively to any unscleroid brains that
petitioner is actually being deprived of his liberty without due process of law.
It appears that petitioner surrendered to the American forces on July 4, 1945, and remained as
prisoner of war of said forces until he was delivered on September 26, 1945, to the Government of
the Commonwealth of the Philippines.

There is absolutely no showing of any official order issued by any authority of the Commonwealth
Government by which petitioner should be detained or restrained of his personal liberty. There is
absolutely no law which authorizes his detention. There is not any lawful act from the executive
department which decrees the deprivation of petitioner's liberty. There is absolutely no judicial
decision, resolution, order, or decree issued by a competent tribunal ordering the detention of
petitioner.

Process is a writ, warrant, subpoena, or other formal writing issued by authority of law; also the
means of accomplishing an end, including judicial proceedings. (3 Bl. Com., 279;
Gollobitsch vs. Rainbow, 84 Iowa, 567.) The word "process" is also used as a general term to cover
all the written means of compelling a defendant to appear in court.

Under the circumstances, we are of opinion that petitioner enjoys the absolute constitutional right to
be restored to his personal freedom.

The Philippine Constitution provides:

No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws. (Art. III, sec. 1, Constitution of the
Philippines.)

Petitioner is deprived of his liberty without due process of law, without any legal process at all.

We have already stated our stand on this question in our two opinion in the case of Raquiza vs.
Bradford (G.R. No. L-44, p. 76, ante), and in the case of Reyes vs. Crisologo (G. R. No. L-54, p.
236, ante).

In the first case, petitioners Raquiza et al., were under the custody of the American armed forces
exactly in the same situation as petitioner herein was before his transfer to the Commonwealth
Government.

Raquiza et al., were political prisoners detained without any process of law, and we voted that they
were entitled to their personal freedom and for the issuance of the writ of habeas corpus they prayed
for.

In said case, a majority of this Court voted for the denial of the petition upon the assumption that this
Court has no jurisdiction to issue the writ when petitioners were under the custody of the United
States Army, stationed in the Philippines, and assuming that war has not ended yet, probably
without knowledge of the official message issued to the Filipino people by President Sergio Osmea
on September 2, 1945, wherein the Chief Magistrate of the nation announced the end of war as said
day.

Circumstances have changed.

Petitioner is not now under the custody of the American Army. He is under the custody of the
Philippine Government. He is under custody of civil Filipino officials. War has ended according to the
official declaration of the Chief Executive of the Philippines. Therefore, the claim for restoration of
liberty is still stronger in regards to the herein petitioner.

It is true that petitioner filed a petition for a writ of habeas corpus with the understanding that, if said
petition is denied, he prayed to be allowed to enjoy provisional liberty on bail. It is true also that he
changed his alternative petition to stand only on the petition to be allowed to be free on bail. It is
true, however, that the constitutional right to personal freedom cannot be waived. And it is also true
that the Rules of Court are not so particular about procedure technicality in habeas corpus cases.
Section 9 of Rule provides:

SEC. 9 Defect of form. No writ of habeas corpus can be disobeyed for defect of form, if it
sufficiently appears therefrom in whose custody or under whose restraint the party
imprisoned or restrained is held and the court or judge before whom he is to be brought.

We believe, therefore, that, under the circumstances, the petition might be considered substantially
as one for habeas corpus, and we are duty bound to grant it.

IV. PETITIONER HAS AN ABSOLUTE RIGHT TO HIS LIBERTY, MUCH MORE ON BAIL

There being no legal process which justifies the restraining of liberty of petitioner, the latter has an
absolute right to be set at liberty without any condition. Petitioner erred in withdrawing in the court
below his petition for habeas corpus, instead of pressing that the same be acted upon.

If petitioner is entitled to be free without any condition, without the duty of putting up any bail, there is
more reasons for granting his petition to be given his freedom when he offers to accept the condition
of putting up a bail, and respondent judge committed, not only an error of law, but also a grave
injustice in denying the petition of petitioner to be released on bail.

Petitioner filed his petition for a writ of habeas corpus on October 4, 1945, praying to be discharged
from further custody and imprisonment or, at least, be granted provisional liberty on a reasonable
bond not to exceed P10,000.

On October 5, petitioner withdraw his petition for a writ of habeas corpus "for personal reasons
which need not be expressed," standing on his alternative petition for provisional release on bond,
and prayed that the Solicitor General be requested to make his comment and recommendation on
said alternative petition for provisional release.

On October 6, the Solicitor General, represented by Special Prosecutor Macario M. Peralta, filed a
recommendation stating "that on the strength of the evidence on record, the reasonable bail
recommended for the provisional release of petitioner is P35,000."

On the same date, October 6, Judge R. Nepomuceno, of the People's Court, upon receiving the
favorable recommendation of the Solicitor General, set the petition for provisional release on bail for
hearing on October 8, and required the Solicitor General "to appear at the hearing for the purpose of
giving such information to the court as may enable it to determine whether the case is bailable or not
and, if bailable, what amount should be required."

At the hearing no evidence has been presented because, as Special Prosecutor Carpio said, "the
office has not the material time to check up all the evidence submitted to us by the military
authorities," and neither have we formulated the necessary information," and that "the evidence is
such confidential in nature that we are not in a position to divulge it at this time."
The information was given, among others, after Judge Nepomuceno asked: "What evidence does
the Solicitor General have with respect to the prisoner which will enable this court to determine
whether the offense for which he is held in custody is bailable or not?"

The papers in connection with the case have been received from the military authorities and, as
Special Prosecutor Carpio said, "We have had no chance to check up all those documents or to
verify the truthfulness of the statements therein made to enable us to say the degree of the truth or
veracity of the facts therein contained."

After said hearing, petitioner's counsel submitted a memorandum, invoking the doctrine laid down by
this Supreme Court in the case of Marcos (G. R. No. 46490) wherein it was stated that the petition
for provisional release must be set for hearing in which the prosecution should present its evidence,
the same as the defense, to enable the court to determine if the offense is bailable or not.

On October 12, respondent Judge Salvador Abad Santos issued the order of denial worded as
follows: "After due hearing of the petition for provisional release on bail of the political prisoner, Pio
Duran, the court has arrived at the conclusion that the petition should be, as it is hereby, denied."

Immediately, on the said day, petitioner's counsel filed a motion for reconsideration, which was
denied in the order issued on October 15.

No information or formal charges having been filed against petitioner, there is absolutely no legal
process to justify his detention. But on the hypothesis that a legal fiction can be accepted to the
effect that such information or formal charges for the crime of treason (the one mentioned by Special
Prosecutor Carpio), may be taken as filed, though not a scintilla of evidence has been presented, the
case stands on all fours with the Marcos case, wherein the accused was granted provisional release
on bail, because the prosecution, like what Special Prosecutor Carpio did refused to divulge the
evidence against the accused.

In the light of the doctrine established in the Marcos case, the court had no other alternative than to
grant the provisional release on bail.

The position of the petitioner became still stronger if we take into consideration the fact that the
Solicitor General, not only did not oppose the petition, but expressly agreed to it, recommending that
the reasonable bail "for the provisional release of petitioner is P35,000."

V. SECTION 19 OF COMMONWEALTH ACT NO. 682

Now let us see if section 19 of Commonwealth Act. No. 682, creating the People's Court, may in any
way justify the action of respondent judge.

There are three parts in said section the principal provision and two provisos. The principal
provision commands the Office of Special Prosecutors to receive all records, documents, exhibits
and such other things as the Government of the United States may have turned over in connection
with and/or affecting political prisoners, examine them "and take, as speedily as possible, such
action as may be proper."

The second proviso suspends for a period of six months the provisions of article 125 of the Revised
Penal Code, "insofar as the aforesaid political prisoners are concerned, in the interest of public
security." It must be remembered that before the enactment of Commonwealth Act No. 682, said
article has been suspended by executive order for a period of thirty days.
The text of the first proviso is as follows:

That existing provisions of law to the contrary notwithstanding, the aforesaid political
prisoners may, in the discretion of the People's Court, after due notice to the Office of the
Special Prosecutors and hearing, be released on bail, even prior to the presentation of the
corresponding information, unless the court finds that there is strong evidence of the
commission of a capital offense.

The provision authorizes that the political prisoners in question "may be released on bail, even prior
to the presentation of the corresponding information," and may be done "existing provisions of law to
the contrary notwithstanding."

No one has been able to point out what and which are the alluded "existing provisions of law to the
contrary notwithstanding." But it seems that Congress inserted this sentence as a saving measure,
in order to avoid any possible loophole. Considering the fact that the law was enacted in a special
legislative session, when not enough time for research was available, and the urgency of the
measure, in view of the impending transfer by the U.S. Army of about 4,000 political prisoners to the
Commonwealth Government, not being prohibit the release on bail of a detained political prisoner,
"even prior to the presentation of the corresponding information," the authors of the bill deemed it
wise to insert this sentence just in case, so as to avoid by lack of foresight the defeat of the
legislative main purpose, that is, to permit said political prisoners to be released on bail "even prior to
the presentation of the corresponding information, unless the court finds that there is strong
evidence of the commission of a capital offense."

The proviso grants the People's Court discretion. But, discretion in what? We must assume that the
discretion granted must be construed in the sense that the same may be exercised in cases wherein
it was not heretofore granted by law. And it is reasonable to assume that the discretion granted is to
the effect that the People's Court may exercise jurisdiction to order the release on bail of political
prisoners "even prior to the presentation of the corresponding information." It is so, because before
the presentation of said information, Congress believed that the court had no jurisdiction to act upon
a petition for release on bail.

The word "discretion" as used in section 19 of Commonwealth Act. No. 682 cannot be construed in
the sense that the People's Court may not order the release on bail of a political prisoner, once it
exercise jurisdiction on a petition to said effect.

"Unless the Court finds that there is strong evidence of the commission of a capital offense," it has
no power to deny a petition for release on bail, because

All persons shall, before conviction, be bailable by sufficient sureties, except those charged
with capital offenses when evidence of guilt is strong. (Sec. 1: 15, Art. III, Constitution of the
Philippines.)

Congress could not have intended to defeat or to violate this specific and imperative mandate of the
Constitution. It is one of the principles of legal hermeneutics that the legislative intent must be
construed not to violate any constitutional provisions, unless it is impossible to give an interpretation
different from the law as worded.

The "discretion" granted by Congress is only to take or not to take cognizance of a petition for
"release on bail, even prior to the presentation of the corresponding information." If the People's
Court refuses to take cognizance of such a petition, the prisoner has always open the doors to file a
petition for a writ of habeas corpus, the privilege not having been suspended.
In granting such discretion, undoubtedly Congress has in mind that if the political prisoners in
question are not allowed to be released on bail, they might press the courts with hundreds or
thousands of petitions for writs of habeas corpus.

Of course, even in cases of capital offenses, the courts are empowered to allow the accused to be
bailed, although in such cases, the accused cannot invoke any constitutional right when the
evidence is strong. (People vs. Baez, G. R. No. L-26 and People vs. Samano, G. R. No. L-27, 41
Off. Gaz., 888.)

VI. THE MAJORITY INTERPRETATION

"As a military political prisoner so the majority opinion runs he (the petitioner) could not be
bailed out," a statement which will look in vain for a legal support, especially in peace time.

Then coming to construe the provision of section 19 of Commonwealth Act No. 682, the majority
opinion declares that the power to grant release on bail is purely discretionary on the court. The very
words used are scilicet: "As may be seen from the above express provision of law, the release of a
detainee on bail, 'even prior to the presentation of the corresponding information,' is purely
discretionary on the People's Court. The only exception to it is when 'the Court finds that there is
strong evidence of the commission of a capital offense', in which case no bail whatever can be
granted, at the provision appears mandatory. In other words, aside from that, the People's Court has
the absolute discretion to grant bail or not."

The wording of section 19, which unfortunately is not a model of legislative perspicuity, may
apparently justify the interpretation of the majority. But in view of the provisions of the Constitution,
as far as possible, we must avoid reading in the lay a legislative intention violative of specific
constitutional mandate, such as the one making it imperative to allow all persons to be bailed before
final conviction, except when charged with capital offense and the evidence of guilt is strong.

If the interpretation of the majority is corrected, then we must be compelled to declare section 19 of
Commonwealth Act No. 682 unconstitutional, where it gives the People's Court absolute
discretionary power to grant or to deny the petition of a prisoner to be released on bail, a power so
unlimited that it cannot fail to remind us of the abhorrent absolution of a judicial dictatorship.

When a prisoner or a detainee is charge with offenses other than capital, before final conviction, he
is entitled to be bailed by sufficient sureties, and no court has power nor authority to exercise
discretion whether to grant or to deny the release, because to deny it is tantamount to an abusive
dereliction of duty, to trampling one of the fundamental rights held sacred by our people, to reducing
our Constitution to a mere scrap of paper.

The Constitution grants discretion to deny a petition for release on bail only in cases wherein the
accused are charged with capital offenses and the evidence of guilt is strong. But a court is
empowered to grant or to deny the petition for release in accordance with the doctrine we have
already stated in our opinion in the cases of People vs. Baez (G.R. No. L-26), and People vs.
Samano (G. R. No. L- 27, 41 Off. Gaz., 888).

VII. APPLICATION OF THE BAIL CLAUSE OF THE CONSTITUTION TO CASES WHEREIN NO

INFORMATION HAS BEEN FILED

Evidently the majority assumes the position that, because the corresponding information for a
criminal offense has not as yet been filed against the petitioner, the bail clause of the Constitution
which provides that "all persons shall, before conviction, be bailable by sufficient sureties, except
those charged with capital offenses when evidence of guilt is strong," is not applicable to the present
case, excluding petitioner from the constitutional description of "all persons."

It interprets the words "all persons" used by the Constitution as meaning "not all persons." It is based
on the false assumption that where the drafters of our Constitution wrote the word "all," in fact, they
wrote "not all," that is, the very opposite of the simple meaning, universally understood, of the word
"all."

The Constitution provides that "all persons shall, before conviction, be able," but the majority opines
that this provision cannot be invoked in this case for the reason that the corresponding information
has not as yet been filed against the petitioner.

Why? Is it because the information has not yet been filed, petitioner ceased on be included within
the words "all persons"? Are individuals against whom no information for any offense has been filed
not person"? Since when have those against whom no information for a criminal offense has been
filed ceased to be person"? Since when can be word "person"? only applied to accused in an
information? What about us, the remaining 18 million Filipinos?

The untenability of the majority's proposition becomes self-evident by the absurd consequences to
which it immediately and necessarily leads.

Where in the Constitution is written "all person", unless we are unable to read, we must read simply
"all person." And when petitioner filed the petition in this case, and we accepted it gave it due
course, ordered respondent judge to answer it, allowed both parties to argue this case in a public
hearing, it is presumed that we took for granted that petitioner is endowed with the essential
attributes and qualities of a person. This Supreme Court is not supposed to accept and entertain any
petition coming from any being not a person, as anyhow, the act of filing a petition before this Court
can exclusively be performed by a person.

A petitioner is a person, whether an information has been filed against him or not as yet; he is
included among the "all person" to whom the Constitution grants the fundamental right to be bailed
before final conviction for an offense.

The majority's theory of exempting from the words have those against whom no information for a
criminal "all persons" all those against whom no information for an offense has as yet been filed
leads to the additional absurdity of placing persons, against whom no information has been filed, in a
more precarious and disadvantageous position than person against whom no information for a
criminal offense has been filed the right to enjoy freedom, which is reorganized and enjoyed by
those who are accused.

We cannot pass the following statement in the majority opinion unchallenged: Having invoked the
clear provision of section 19 of Act No. 682 for his temporary release on bail, the petitioner cannot,
therefore, attack it as being illegal or unconstitutional.".

The proposition is begging the question.

Petitioner interprets section 19 of Commonwealth Act No. 682, and then wants the Supreme Court to
interpret it, as in consonance with the bail clause of the Constitution and, interpreted in that way,
there is no person for the petitioner to attack its constitutionality.
But the majority opinion gives said section a construction which decidedly places it in a headlong
conflict with the bail clause for the Constitution. If this is the case, we do not understand how
petitioner, or any other else, can be precluded from impugning the validity of such section on
constitutional grounds.

Petitioner invokes said section 19 on the assumption that it is to be interpreted as not running
counter to any constitutional mandate.

Being otherwise construed, he is entitled to attack the correctness of such interpretation and, falling
in that endeavor, it is his right and, more than right, the civic duty to denounce a legal provision
which violates the fundamental of the land and try all he can to have it invalidated.

VIII. NO MATTER WHAT THE MAJORITY SAY, THERE IS AN ESSENTIAL DIFFERENCE

BETWEEN MERE STATEMENT OR RECITAL OF SUPPOSED ACTS AND EVIDENCE.

In the majority opinion there appears a deplorable confusion, by elevating the mere statements
made by Special Prosecutor Carpio before the People's Court to the rank and category of an
evidence.

In the majority opinion we read:

Counsel's contention that the general special prosecutor should have presented evidence to
prove that there was strong evidence of a commission of a capital before the People's Court
could deny bail in this case was substantially complied with, although the information
charging the commission of the crime of treason had not as yet being filed. We are of the
opinion and so hold that the hearing set and held for the purpose (seeAppendix E) was
amply sufficient for the People's Court to be informed and determined whether there was a
strong evidence of the commission of a capital offense. The special prosecutor clearly
informed the People's Court in the presence of the adverse counsel, in a part, as follow;
(Here follows quotations of a long statements made by special prosecutor as appearing in
Appendix E.)

By the foregoing, statement, the majority wipes out completely all laws, decisions, rules, resolution,
and jurisprudence about evidence, its concept and its indispensable and important role in court
proceeding and in the administration of justice.

Section 1 of Judicial Rule 123, as promulgated by this very Supreme Court, provided:

Evidence defined. Evidence is the means, sanctioned by this rule, of ascertaining in a

judicial proceeding the truth respecting a matter of fact.

There are 100 sections in Judicial 123, but there is nothing in those 100 sections authorizing the
proposition of the majority to the effect that the statements made by the special prosecutor before
the People's Court can take the place of an evidence.

Soon we will be ten and one score years since we were authorized to practice law as a profession.
In our long experience with law we never had the change of seeing confused a mere statement with
an evidence.

It seems that from the promulgation of the decision in this case our concepts about a mere
statement and an evidence will undergo a radical revision. Our courts of justice and the bar will have
to face the perplexing situation which the revision will create. Law textbooks and even dictionaries
must have to be revised too. We are afraid, notwithstanding, that the future will appear dark and
hopeless. If more statements are considered evidence, we are afraid the administration of justice will
suffer a complete frustration. We tried to see light in the confusion between mere statements and
evidence, but we can not glean even the flickering flashes of a firefly in the gloom and darkness of
the future juridical night.

Although implicitly maintaining that the bail clause of the Constitution is not applicable to petitioner's
case, we cannot fail to perceive in the majority opinion a weak attempt to show in some way that
petitioner is charged with a capital offense and the evidence of guilt is strong and, therefore,
respondent judge had not violated the bail clause of the Constitution.

But the attempt appears futile if we pause for a while to analyze the line of reasoning followed in the
majority opinion.

In runs as follows: "But even if we should concede counsel's People's Court had not been given that
direction to deny bail to the petitioner, still the conclusion of the respondent judge is not unfounded;"
because "First, the special prosecutor stated that the information to be filed in the case would be for
treason," and Secondly, the recital by the special prosecutor of the supposed acts committed by the
petitioner . . . supports the conclusion and ruling of the People's Court."

The Constitution provides that: All persons shall before conviction be bailable by sufficient sureties,
except those charged with capital offenses when evidence of guilt is strong." (Art. III, sec. 1, No. 16,
Constitution of the Philippines.)

From the foregoing, it can be readily seen that, by the very words of the majority, none of the two
essential elements required by the Constitution to concur in cases where denial of bail is permissible
exists in the present case.

The first element is that petitioner must be "charged with capital offense," and according to what we
read in the majority's opinion, no charge has as yet been filed, because the special prosecutor stated
that the information is yet "to be filed in the case." .

The second constitutional element is "when evidence of guilt is strong." In the present case, not an
iota of evidence has been presented to that effect. Nobody will seriously attempt to elevate to the
category of evidence the "recital by the special prosecutor of the supposed of the supposed acts
committed by the petitioner." Otherwise, the rights of all citizens, including the fundamental ones
life, liberty property, honor will be placed at the mercy of any special prosecutor.

Huge amounts of property and accumulated riches and treasure were destroyed, millions of lives
were sacrificed, untold sufferings were endured by the remaining hundreds of millions of souls to
free the earth from the scourge of tyranny of Mussolini, Hitler, No greater tragedy can be inflicted on
our people if the tyranny of the archcriminals is to be replaced by that of the special prosecutors,
whose more "recital" of supposed acts is evidence enough to prove the guilt of any person, making
said "recital" as powerful as a dreaded imperial ukase.

IX. THE DENIAL OF THE PETITION IS VIOLATIVE OF THE INTERNATIONAL GUARANTEES

CONTAINED IN THE CHARTER OF THE UNITED NATIONS.

Liberty is one of the fundamental human freedom guaranteed, not only in the Constitution of the
Philippines, but also in the Charter of the United Nations, which is in full force in our country.
The denial of the petition is, therefore, violative of the principles enunciated in said charter, a
veritable International Constitution by which the United Nations, one of them the Philippines, became
organized virtually as a social unit under the jurisdiction of a General Assembly and a Security
Council as a kind of world governmental organisms.

We quote from the Charter of the United Nations:

CHARTER OF THE UNITED NATIONS

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the equal rights of men and women and of
nations large and small, and to establish conditions under which justice and respect for the
obligations arising from the treaties and other sources of International Law can be
maintained, and to promote social progress and better standard of life in larger freedom,

xxx xxx xxx

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS

According our respective Governments, through representatives assembled in the City of San
Francisco, who have exhibit their full powers found to be in good and due form, have agreed to the
present Charter of the United Nations and do hereby establish an international organization to be
known as the United Nations.

"Article 1

xxx xxx xxx

"3. To achieve international cooperation in solving international problems of an economic, social,

cultural or humanitarian and encouraging respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or religion: and

"4. To be a center for harmonizing the actions of nation in the attainment of these common ends.

xxx xxx xxx

"Article 13

"1. The General Assembly shall initiate studies and make recommendations for the purpose of:

b. promoting international cooperation in the economic, social, cultural, educational, and

health fields, and assisting in the realization of human rights and fundamental freedoms for
all without distinction as to race, sex, language, or religion.

xxx xxx xxx

 "Article 55

With a view to the creation of condition of stability and well being which are necessary for
peaceful and friendly relations among nations based on respect for the principles equal rights
and self determination of peoples, the United Nations shall promote:

xxx xxx xxx

c. universal respect for, and observation of human rights and fundamentals freedom for all
without distinction as to race, sex, language, or religion.

The present controversy is part of the test mentioned by President Osmea when on the occasion of
the 38th anniversary of the First Philippine Assembly, on October 16, 1945, that statesman said: "As
we face the future amid the dire aftermath of the bitterly destructive war, the world is again watching
the Philippines for we faced the greatest test in all our history whether this nation, conceived in
self-respect and dedicated to the principles of freedom, democracy and the right of a common man,
can rise out of the ashes and build a land of promise for all." (Off. Gas., October, 1945, p. 532.)

Upon signing Commonwealth Act No. 682 on September 25, 1945, the President said: "we can
assure the Filipino people and the whole world that all who are accused of collaboration with the
enemy will be tried by the processes of law and justice, which are firmly established here as they are
elsewhere in the civilized world." (Off. Gas., October, pp. 690, 691.) We are afraid we are not doing
our part in the assurance when petitioner is denied the equal protection of the laws, and is not
released even on bail, a condition he is willing to fulfill, although not required under the Constitution.

Those of us believed in the great principles of freedom as indispensable element of human

happiness, pinned their hopes for a better world on the victory of the forces of light, the standard
bearer of the democracy, the champions of individual and collective liberties. The final victory was,
conclusively won on September 2, 1945. The meaning and the validity of those principles are now
under the test in the present case. The test is taking place not less than in the highest tribunal of one
of the proud nations which contributed to victory with the heroism, gallantry and martyrdom of
uncounted thousand of her sons and daughters. Bataan become a new symbol of liberty which fired
the imagination, not only of millions of Filipinos, as Balintawak did half a century ago, not only of our
blood relatives such an Indonesian and other Malayan people scattered in the Indian and Pacific
Oceans, but of hundreds of millions of liberty-loving souls all over the world. If few cowards and
mercenaries humbled themselves to lick the boots of the insolent enemy, in temporary ascendancy,
to advance with the betrayal their personal fortunes, in numerable rivals of Bonifacio and Luna, of
Jacinto and Del Pilar, filed with their unsung gestes mountains and valleys, keeping in wonder
comrades in arms abroad, and, headed by Chief Justice Abad Santos, many thousands of Filipino
Martyrs faced death with the divine serenity of those who have faith in the Ideal. Are our hopes to
shrivel and fade sooner than the tender petals of a beautiful orchid? Is our unbounded faith in the
blissful promises of liberty to be shaken so soon by disappointment? Are the principles for which we
fought with other democracies like multi-colored butterflies, flying beauties while out of our reach and
dirty shreds of dead matter in the hands of a boy? Are they just deceitful dreams, mirages and
illusions?

It is the duty of all us to keep burning the torch of liberty, collective and individual. The role of
leadership our people assumed in the fight for democracy in this region of the globe has placed on
our shoulders the burden of a great national and international responsibility. The whole world is
watching today the gallant fight for independence of Nesiots, our brethren of Java who have followed
with envious eyes our unremitting fight for the same ideal, initiated in the latter part of the last
century, and our gigantic strides towards the full attainment of our national aspirations. But, besides
national dignity, the real content of independence are the civil liberties of the individual persons. At
the bottom of the national freedom are the individual freedoms. We blazed the trial of oriental
freedoms. After us, under the perspicacious leadership of Gandhi, India has been fighting for its
liberation for three decades. Now our kinsmen in Java challenge boldly Dutch imperialism. We hope
that eventually all the Malayan race shall be freed from bondage and shall regain its position of
dignity among the other races. For God's sake, let us not recede nor retrace the steps already taken
to make personal freedom, which is the basis of all freedoms, bloom in the glory of reality and ripen
with the fullness of its magnificent meaning.

X. CONCLUSIONS

Our conclusions are:

1. Petitioner is actually deprived of liberty without due process of law, in flagrant violation of the Bill
of Rights of the Philippine Constitution, no charges having been filed against him for any offense.

2. His detention is not authorized by any government office or officer with legal power to order it.

3. Petitioner is, therefore, entitled as a matter of absolute constitutional right to immediate

unconditional release.

4. Having manifested his willingness to put bail for his release, the more reason there is for granting
his petition.

5. Under the provisions of section 19 of Commonwealth Act No. 682, the People's Court has no
discretion to deny a petition for release on bail, unless petitioner is charged with a capital offense
and the evidence of guilt is strong.

6. The People's Court cannot decide whether the evidence is strong in a case of capital offense,
unless said evidence is presented.

7. Mere statements of a prosecutor are not enough. Mere statements are not evidence according to
the Rules of Court. Statements are not to be confused with evidence.

8. Not a scintilla of evidence having been presented against the petitioner, the prosecutor refusing to
disclose any evidence, the People's Court was in duty bound to grant the petition for release on bail,
if the doctrines established by the Supreme Court in the Marcos, Baez and Samano cases, are to
be followed.

9. To construe section 19 of Commonwealth Act No. 682 as granting the People's Court full
discretion to deny a petition for release on bail is to make it unconstitutional.

10. The denial of the petition is violative of the fundamental rights guaranteed, not only by the
Constitution of the Philippines, but also by the Charter of the United Nations, which is now in full
force in this country.

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

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

J. Antonio Araneta for appellant.

First Assistant Solicitor General Jose B. L. Reyes and Solicitor Ramon L. Avancea for appellee.

HILADO, J.:

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

On or about the 27th of January, 1945, the guerrillas raided the Japanese in Sitio Pulong Tindahan,
Municipality of Angat, Province of Bulacan. In reprisal, Japanese soldiers and a number of Filipinos
affiliated with the Makapili, among them the instant appellant, conceived the diabolical idea of killing
the residents of Barrio Banaban of the same municipality (Exhibits A, C, and C-1). Pursuant to this
plan, said Japanese soldiers and their Filipino companions, armed with rifles and bayonets, gathered
the residents of Banaban behind the barrio chapel on January 29, 1945. Numbering about sixty or
seventy, the residents thus assembled included men, women and children mostly women
(Exhibits A, C, amd C-1; pp. 3-16, 29, 30, 65, 102, t.s.n.).

The children were placed in a separate group from the men and women the prosecution star
witnesses, Maria Paulino and Clarita Perez, were among the children (pp. 3, 40, t.s.n. ). Presently,
the Japanese and their Filipino comrades set the surrounding houses on fire (pp. 14, 48, 70, 71,
103, t.s.n.), and proceeded to butcher all the persons assembled, excepting the small children, thus
killing, among others, those known by the following names: Patricia, Dodi, Banda, Tana, Uyang,
Mina, Marta, Sana, Eufemia, Doroteo, Andres, Perly, Tisiang, Urado, Pisan, Dorang, Felisa, and
Eulalia (pp. 8, 10, 13, 14, 31, 32, 47, 48, 61, 63, t.s.n.).

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

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

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

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

Not only this, but the testimony of Clarita Perez and Maria Paulino is so clear, positive and
convincing that it would be sufficient for conviction without any further corroboration. Yet, there is
ample corroborative proof. Thus, Tomas M. Pablo declared that he had seen the corpses of the
massacred residents of Banaban shortly after the happening of the heinous crime (p. 136, t.s.n.).
And appellant himself admitted his participation in the massacre in two sworn statements one
made on August 28, 1945, before Lt. Jesus Cacahit, Detachment Commander of the Angat 23d MP
Command (Exhibit A; pp. 75-77, t.s.n.) and another made on September 5, 1945 before Feliciano F.
Torres, Assistant Provincial Fiscal of Bulacan (Exhibits C, C-1; pp. 150-159, t.s.n.).

In No. 1 of his assignment of errors, appellant's counsel contends that appellant was a member of
the Armed Forces of Japan, was subject to military law, and not subject to the jurisdiction of the
People's Court; and in No. 2 he advances the theory that appellant had lost his Philippine citizenship
and was therefore not amenable to the Philippine law of treason. We cannot uphold either
contention. We are of the considered opinion that the Makapili, although organized to render military
aid to the Japanese Army in the Philippines during the late war, was not a part of said army. It was
an organization of Filipino traitors, pure and simple. As to loss of Philippine citizenship by appellant,
counsel's theory is absolutely untenable. He invokes in its support paragraphs 3, 4, and 6 of section
1 of Commonwealth Act No. 63, providing:

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

xxx xxx xxx

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

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

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

xxx xxx xxx

(6) By having been declared, by competent authority, a deserter of the Philippine Army,
Navy, or Air Corps in time of war, unless subsequently a plenary pardon or amnesty has
been granted.

There is no evidence that appellant has subscribed to an oath of allegiance to support the
constitution or laws of Japan. His counsel cites (Brief, 4) the fact that in Exhibit A "he subscribed an
oath before he was admitted into the Makapili association, "the aim of which was to help Japan in its
fight against the Americans and her allies.'" And the counsel contends from this that the oath was in
fact one of allegiance to support the constitution and laws of Japan. We cannot uphold such a far-
fetched deduction. The members of the Makapili could have sworn to help Japan in the war without
necessarily swearing to support her constitution and laws. The famed "Flying Tiger" who so bravely
and resolutely aided China in her war with Japan certainly did not need to swear to support the
Chinese constitution and laws, even if they had to help China fight Japan. During the first World War
the "National Volunteers" were organized in the Philippines, pledged to go to Europe and fight on the
side of the Allies, particularly of the United States. In order to carry out that mission although the
war ended before this could be done they surely did not have to take an oath to support the
constitution or laws of the United States or any of its allies. We do not multiply these examples, for
they illustrate a proposition which seems self-evident.

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

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

Further, appellant's contention is repugnant to the most fundamental and elementary principles
governing the duties of a citizen toward his country under our Constitution. Article II, section 2, of
said constitution ordains:

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

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

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

But the laws do no admit that the bare commission of a crime amounts of itself to a
divestment of the character of citizen, and withdraws the criminal from their coercion. They
would never prescribe an illegal act among the legal modes by which a citizen might
disfranchise himself; nor render treason, for instance, innocent, by giving it the force of a
dissolution of the obligation of the criminal to his country. (Moore, International Law Digest,
Vol. III, p. 731.)
 696. No person, even when he has renounced or incurred the loss of his nationality, shall
take up arms against his native country; he shall be held guilty of a felony and treason, if he
does not strictly observe this duty. (Fiore's International Law Codified, translation from Fifth
Italian Edition by Borchard.)

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

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

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

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

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

I concur in the result because I am convinced that the appellant is guilty of multiple murder and he
even deserves the maximum penalty.

Separate Opinions

PERFECTO, J., concurring and dissenting:

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

From the testimony of Maria Paulino we quote:

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

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

xxx xxx xxx

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

Q. How to read. A. No, Sir.

Q. Do you know how to pray? A. I forgot how to pray."(Pages 44 and 45, t.s.n.)

From the testimony of Clarita Perez, we quote:

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

Q. What town? A. I do not know.

JUDGE NEPOMUCENO:

Q. Is Banaban a sitio in the town of Malolos, or Quigua, or Bigaa? A. I do not know, sir.

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

JUDGE ABAD SANTOS:

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

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

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

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

G.R. No. L-2189 November 3, 1906

THE UNITED STATES, plaintiff-appellee,

vs.
FRANCISCO BAUTISTA, ET AL., defendants-appellants.

Aguedo Velarde and Pineda and Escueta, for appellants.

Office of the Solicitor-General Araneta, for appellee.

CARSON, J.:

The appellants in this case was convicted in the Court of First Instance of Manila of the crime of
conspiracy to overthrow, put down, and destroy by force the Government of the United States in the
Philippine Islands and the Government of the Philippine Islands, as defined and penalized in section 4 of
Act No. 292 of the Philippine Commission.

The appellant Francisco Bautista was sentenced to four years' imprisonment, with hard labor, and
$3,000 fine, and Aniceto de Guzman and Tomas Puzon, and each of them, to three years' imprisonment,
with hard labor, and a fine of $2,000, and all and each of the said appellants to pay their proportionate
share of the costs of the trial and to undergo subsidiary imprisonment in the event of insolvency and
failure to pay their respective fines.

The evidence of record conclusively establishes that during the latter part of the year 1903 a junta was
organized and a conspiracy entered into by a number of Filipinos, resident in the city of Hongkong, for
the purpose of overthrowing the Government of the United States in the Philippine Islands by force of
arms and establishing in its stead a government to be known as the Republica Universal Democratica
Filipina; that one Prim Ruiz was recognized as the titular head of this conspiracy and one Artemio Ricarte
as chief of the military forces to the organized in the Philippines in the furtherance of the plans of the
conspirators; that toward the end of December, 1903 the said Ricarte came to Manila from Hongkong in
hidding on board the steamship Yuensang; that after his arrival in the Philippines he held a number of
meetings in the city of Manila and the adjoining provinces whereat was perfected the above-mentioned
conspiracy hatched in Hongkong that at these meetings new members were taken into the conspiracy
and plans made for the enlistment of an army of revolution and the raising of money by national and
private loans to carry on the campaign; that to this end bonds were issued and commissions as officers
in the revolutionary army were granted to a number of conspirators, empowering the officers thus
appointed to raise troops and take command thereof; and that the conspirators did in fact take the field
and offered armed resistance to the constituted authorities in the Philippines, only failing in their design
of overthrowing the Government because of their failure to combat successfully with the officers of the
law who were sent against them and of the failure of the people to rise en masse in response to their
propaganda.

It further appears from the evidence that the appellant Francisco Bautista, a resident of the city of
Manila, was an intimate friend of the said Ricarte; that Ricarte wrote and notified Bautista of his coming
to Manila and that, to aid him in his journey, Bautista forwarded to him secretly 200 pesos; that after
the arrival of Ricarte, Bautista was present, taking part in several of the above-mentioned meetings
whereat the plans of the conspirators were discussed and perfected, and that at one of these meetings
Bautista, in answer to a question of Ricarte, assured him that the necessary preparations had been
made and that he "held the people in readiness."

It further appears that the appellant, Tomas Puzon, united with the conspirators through the agency of
one Jose R. Muoz, who was proven to have been a prime leader of the movement, in the intimate
confidence of Ricarte, and by him authorized to distribute bonds and nominate and appoint certain
officials, including a brigadier-general of the signal corps of the proposed revolutionary forces; that at
the time when the conspiracy was being brought to a head in the city of Manila, Puzon held several
conferences with the said Muoz whereat plans were made for the coming insurrection; that at one of
these conferences Muoz offered Puzon a commission as brigadier-general of the signal corps and
undertook to do his part in organizing the troops; and that at a later conference he assured the said
Muoz that he had things in readiness, meaning thereby that he had duly organized in accordance with
the terms of his commission.
Puzon at the trial declared that he had never united himself with the conspirators; that he had accepted
the appointment as brigadier-general of the signal corps of the revolutionary forces with no intention of
ever taking any further action in the matter, and merely because he did not wish to vex his friend Muoz
by refusing to do so, and that when Muoz offered him the appointment as brigadier-general he did so
in "a joking tone," and that he, Puzon, did not know that Ricarte was in Manila organizing the conspiracy
at that time.

These statements, however (except in so far as they corroborate the testimony of Muoz as to the fact
that he had several interviews with Puzon at which plans were entered into for the advancement of the
cause of the conspirators), can not be accepted as true in the light of a written statement signed by
Puzon himself at the time when he was first arrested, part of which is as follows:

Q. What is your name and what is your age, residence, and occupation? A. My name is Tomas Puzon;
born in Binondo in the Province of Manila; 37 years of age; married; by profession a teacher of primary
and secondary schools, and residing in Calle Concepcion, No. 195, district of Quiapo.

Q. Do you know Artemio Ricarte? A. Personally I do not know him, but by name, yes.1wphil.net

Q. Did you have any information that Ricarte was in these Islands and with what object he came here?
And if you know it to be true, through whom did you get such information? A. In the first place I had
notice of his coming to the Islands as well as his object by reading the newspapers of Manila, and
secondly because J. R. Muoz told me the same on one occasion when I was in his house to visit him.

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

Q. Are you a part of his new revolution presided over by Ricarte? A. Yes, sir.

Q. What is the employment (empleo) which you have in this organization, and who is it who invited you
to join it? A. J. R. Muoz, who is general of division of this new organization, spoke to me with much
instance, asking me to accept employment as brigadier-general, chief of signal corps, to which I, on
account of his request and in view of the fact that the said Muoz is a friend of mine from my youth,
acceded; nevertheless I have organized absolutely nothing in respect to this matter.

Q. Did you accept the employment and did they give you any commission for it? A. Yes, sir; I accepted
said employment and although they gave me an order to organize in my brigade I did not do it, because I
had neither the confidence nor the will.

Q. If you didn't have faith in the said authorization nor the will to carry out what was intrusted to you,
why did you accept employment as general of the brigade? A. I accepted it on account of friendship
and not to vex a friend, but I never have the intention of fulfilling the obligations.

Puzon, when on the stand in his own behalf, did not deny that he made this statement, but he
attempted to explain it away by saying that when he made it he was so exited that he did not know just
what he was saying. He does not allege that improper means were taken to procure the confession, and
it was proven at the trial that it was freely and voluntarily made and not the result of violence,
intimidation, threat, menace, or promise of reward or leniency. The accused appears to be an intelligent
man and was for eighteen years a school-teacher and later a telegraph operator under the Spanish
Government, and during the insurrection he held a commission as an officer in the signal corps of the
revolutionary army. His confession is clear and intelligible and in no way supports his pretense that he
was so excited as not to know what he was saying when he made it, and its truth and accuracy in so far
it inculpates him is sustained by other evidence of record in this case.

It is contended that the acceptance or possession of an appointment as an officer of the military forces
of the conspiracy should not be considered as evidence against him in the light of the decisions of this
court in the cases of the United States vs. Antonio de los Reyes 1 (2 Off. Gaz., 364), United
States vs. Silverio Nuez et al.2 (3 Off. Gaz., 408), the United States vs. Eusebio de la Serna et al. 3 (3 Off.
Gaz., 528), and United States vs. Bernardo Manalo et al. 4 (4 Off. Gaz., 570). But the case at bar is to be
distinguished from these and like cases by the fact that the record clearly disclose that the accused
actually and voluntarily accepted the apppointment in question and in doing so assumed all the
obligations implied by such acceptance, and that the charge in this case is that of conspiracy, and the
fact that the accused accepted the appointment is taken into consideration merely as evidence of his
criminal relations with the conspirators. In the first of these cases the United States vs. De los Reyes
the accused was charged with treason, and the court found that the mere acceptance of a
commission by the defendant, nothing else being done either by himself or by his companions, was not
an "overt act" of treason within the meaning of the law, but the court further expressly held that

That state of affairs disclosed body of evidence, . . . the playing of the game of government like children,
the secretaries, colonels, and captains, the pictures of flags and seals and commission, all on proper, for
the purpose of duping and misleading the ignorant and the visionary . . . should not be dignified by the
name of treason.

In the second case the United States vs. Nuez et al. -- wherein the accused were charged with
brigandage, the court held that, aside from the possession of commissions in an insurgent band, there
was no evidence to show that it they had committed the crime and, "moreover, that it appeared that
they had never united with any party of brigands and never had been in any way connected with such
parties unless the physical possession of these appointments proved such relation," and that it appeared
that each one of the defendants "were separately approached at different times by armed men while
working in the field and were virtually compelled to accept the commissions."

In the case of the United States vs. de la Serna et al. it was contended that de la Serna had confessed
that "he was one of the members of the pulajanes, with a commission as colonel," but the court was of
opinion that the evidence did not sustain a finding that such confession had in fact been made, hence
the doctrine laid down in that decision, "that the mere possession of such an appointment, when it is
not shown that the possessor executed some external act by the virtue of the same, does not constitute
sufficient proof of the guilt of the defendant," applies only the case of Enrique Camonas, against whom
the only evidence of record was "the fact that a so-called appointment of sergeant was found at his
house."

In the case of the United States vs. Bernardo Manalo et al. there was testimony that four appointments
of officials in a revolutionary army were found in a trunk in the house of one Valentin Colorado, and the
court in said case reaffirmed the doctrine that "the mere possession of the documents of this kind is not
sufficient to convict," and held, furthermore, that there was "evidence in the case that at the time these
papers were received by the appellant, Valentin Colorado, he went to one of the assistant councilmen of
the barrio in which lived, a witness for the Government, showed him the envelope, and stated to him he
had received these papers; that he didn't know what they were and requested this councilman to open
them. The coucilman did not wish to do that but took the envelope and sent it to the councilman Jose
Millora. We are satisfied that this envelope contained the appointments in question and that the
appellant did not act under the appointment but immediately reported the receipt of them to the
authorities."

It is quite conceivable that a group of conspirators might appoint a person in no wise connected with
them to some high office in the conspiracy, in the hope that such person would afterwards accept the
commission and thus unite himself with them, and it is even possible that such an appointment might be
forwarded in the mail or otherwise, and thus come into the possession of the person thus nominated,
and that such appointment might be found in his possession, and, notwithstanding all this, the person in
whose possession the appointment was found might be entirely innocent of all intention to join the
conspiracy, never having authorized the conspirators to use his name in this manner nor to send such a
commission to him. Indeed, cases are not unknown in the annals of criminal prosecutions wherein it has
been proven that such appointments have been concealed in the baggage or among the papers of the
accused persons, so that when later discovered by the officers of the law they might be used as
evidence against the accused. But where a genuine conspiracy is shown to have existed as in this case,
and it is proven that the accused voluntarily accepted an appointment as an officer in that conspiracy,
we think that this fact may properly be taken into consideration as evidence of his relations with the
conspirators.

Counsel for appellants contend that the constitutional provision requiring the testimony of at least two
witnesses to the same overt act, or confession in open court, to support a conviction for the crime of
treason should be applied in this case, but this court has always held, in conformance with the decisions
of the Federal courts of the United States, that the crime of conspiring to commit treason is a separate
and distinct offense from the crime of treason, and that this constitutional provision is not applicable in
such cases. (In re Bollman, 4 Cranch, 74; U. S. vs. Mitchell, 2 Dall., 348.)

The evidence of record does not sustain the conviction of Aniceto de Guzman. The finding of his guilt
rest substantially upon his acceptance of a number of bonds from one of the conspirators, such bonds
having been prepared by the conspirators for the purpose of raising funds for carrying out the plans of
the conspiracy, but it does not affirmatively appear that he knew anything of the existence of the
conspiracy or that, when he received the bonds wrapped in a bundle, he knew what the contents of the
bundle was, nor that ever, on any occasion, assumed any obligation with respect to these bonds. He,
himself, states that when he opened the bundle and discovered the nature of the contents he destroyed
them with fire, and that he never had any dealings with the conspirators in relation to the conspiracy or
the object for which it was organized.

We are of opinion, therefore, that the judgment and sentence before us, in so far as it affects the said
Aniceto de Guzman, should be reversed, with his proportionate share of the costs of both instances de
oficio, and that the said Anecito de Guzman should be acquitted of the crime with which he is charged
and set a liberty forthwith, and that the judgment and sentence of the trial court, in so far as it applies
to Francisco Bautista and Tomas Puzon, should be, and is hereby, affirmed, except so far as it imposes
subsidiary imprisonment in the event of insolvency and failure to pay their respective fines, and, there
being no authority in law of such provision, so much of the sentence as undertakes to impose subsidiary
imprisonment is hereby reversed.
After ten days let judgment be entered in accordance herewith, when the record will be returned to the
trial court for execution. So ordered.

Arellano, C.J., Torres, Johnson and Tracey, JJ., concur.

Mapa, and Willard, JJ., concur as to the penalty imposed upon Bautista and dissent as to that imposed
upon Puzon.

G.R. No. 17958 February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

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

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

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

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

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

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

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

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

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

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

2. Whenever the crime is accompanied by murder, homicide, or by any of the

physical injuries specified in articles four hundred and fourteen and four hundred and
fifteen and in paragraphs one and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in

Chapter II, Title IX, of this book.

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

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

ART. 155. With respect to the provisions of this title, as well as all others of this code, when
Spain is mentioned it shall be understood as including any part of the national territory.
 ART. 156. For the purpose of applying the provisions of this code, every person, who,
according to the Constitution of the Monarchy, has the status of a Spaniard shall be
considered as such.

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

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

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

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

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

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

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy
are not inconsistent with the corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction
of articles of the Penal Code, like the articles dealing with the crime of piracy, would be that
wherever "Spain" is mentioned, it should be substituted by the words "United States" and wherever
"Spaniards" are mentioned, the word should be substituted by the expression "citizens of the United
States and citizens of the Philippine Islands." somewhat similar reasoning led this court in the case
of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Penal
Code a limited meaning, which would no longer comprehend all religious, military, and civil officers,
but only public officers in the Government of the Philippine Islands.

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

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

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

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

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

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

Araullo, C.J., Johnson, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ., concur.
 [G.R. No. 118075. September 5, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EMILIANO

CATANTAN y TAYONG, accused-appellant.

DECISION
BELLOSILLO, J.:

EMILIANO CATANTAN and JOSE MACVEN URSAL alias "Bimbo" were charged
with violation of PD No. 532 otherwise known as the Anti-Piracy and Highway Robbery
Law of 1974 for having on 27 June 1993, while armed with a firearm and a bladed
weapon, acting in conspiracy with one another, by means of violence and intimidation,
wilfully and feloniously attacked, assaulted and inflicted physical injuries on Eugene
Pilapil and Juan Pilapil Jr. who were then fishing in the seawaters of Tabogon, Cebu, and
seized their fishing boat, to their damage and prejudice. [1]
The Regional Trial Court of Cebu, after trial, found both accused Emiliano Catantan
y Tayong and Jose Macven Ursal alias "Bimbo" guilty of the crime charged and sentenced
them to reclusion perpetua. [2] Of the duo only Emiliano Catantan appealed.
In his appeal, accused Catantan contends that the trial court erred in convicting him
of piracy as the facts proved only constitute grave coercion defined in Art. 286 of the
Revised Penal Code and not piracy under PD No. 532.
The evidence for the prosecution is that at 3:00 o'clock in the morning of 27 June
1993, the Pilapil brothers Eugene, 21, and Juan Jr., 18, were fishing in the sea some 3
kilometers away from the shores of Tabogon, Cebu. Suddenly, another boat caught up
with them. One of them, later identified as the accused Emiliano Catantan, boarded the
pumpboat of the Pilapils and leveled his gun at Eugene. With his gun, Catantan struck
Eugene on the left cheekbone and ordered him and Juan Jr. to "dapa." [3] Then Catantan
told Ursal to follow him to the pumpboat of the Pilapils. There they hogtied Eugene, forced
him to lie down at the bottom of the boat, covered him with a tarpaulin up to his neck,
stepped on him and ordered Juan Jr. to ferry them to Daan Tabogon. They left behind the
other pumpboat which the accused had earlier used together with its passengers one of
whom was visibly tied.
Noting that they were already far out into the sea, Eugene reminded Catantan that
they were now off-course but Catantan told Eugene to keep quiet or he would be
killed. Later, the engine conked out and Juan Jr. was directed to row the boat. Eugene
asked to be set free so he could help but was not allowed; he was threatened with bodily
harm instead.
Meanwhile Juan Jr. managed to fix the engine, but as they went farther out into the
open sea the engine stalled again. This time Eugene was allowed to assist his
brother. Eugene's hands were set free but his legs were tied to the outrigger. At the point
of a tres cantos [4] held by Ursal, Eugene helped row the boat.
 As they passed the shoreline of Nipa, they saw another boat. Catantan asked whose
boat that was and the Pilapils told him that it was operated by a certain Juanito and that
its engine was new. Upon learning this, Catantan ordered the Pilapil brothers to approach
the boat cautioning them however not to move or say anything.
On the pretext that they were buying fish Catantan boarded the "new"
pumpboat. Once aboard he ordered the operator Juanito to take them to Mungaz, another
town of Cebu. When Juanito tried to beg-off by saying that he would still pull up his net
and harvest his catch, Catantan drew his revolver and said, "You choose between the
two, or I will kill you." [5] Juanito, obviously terrified, immediately obeyed and Ursal hopped
in from the other pumpboat and joined Catantan.
But, as Ursal was transferring to the "new" pumpboat, its outrigger caught the front
part of the pumpboat of the Pilapils so he kicked hard its prow; it broke. The jolt threw
Eugene into the sea and he landed on the water headlong. Juan Jr. then untied his
brother's legs and the two swam together clinging to their boat. Fortunately another
pumpboat passed by and towed them safely ashore.
Section 2, par. (d), of PD No. 532, defines piracy as "any attack upon or seizure of
any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the
personal belongings of the complement or passengers, irrespective of the value thereof,
by means of violence against or intimidation of persons or force upon things, committed
by any person, including a passenger or member of the complement of said vessel, in
Philippine waters, shall be considered as piracy. The offenders shall be considered as
pirates and punished as hereinafter provided." And a vessel is construed in Sec. 2, par.
(b), of the same decree as "any vessel or watercraft used for transport of passengers and
cargo from one place to another through Philippine waters. It shall include all kinds and
types of vessels or boats used in fishing (underscoring supplied).
On the other hand, grave coercion as defined in Art. 286 of the Revised Penal Code
is committed by "any person who, without authority of law, shall, by means of violence,
prevent another from doing something not prohibited by law, or compel him to do
something against his will, whether it be right or wrong."
Accused-appellant argues that in order that piracy may be committed it is essential
that there be an attack on or seizure of a vessel. He claims that he and his companion
did not attack or seize the fishing boat of the Pilapil brothers by using force or intimidation
but merely boarded the boat, and it was only when they were already on board that they
used force to compel the Pilapils to take them to some other place. Appellant also insists
that he and Ursal had no intention of permanently taking possession or depriving
complainants of their boat. As a matter of fact, when they saw another pumpboat they
ordered the brothers right away to approach that boat so they could leave the Pilapils
behind in their boat. Accordingly, appellant claims, he simply committed grave coercion
and not piracy.
We do not agree. Under the definition of piracy in PD No. 532 as well as grave
coercion as penalized in Art. 286 of the Revised Penal Code, this case falls squarely
within the purview of piracy. While it may be true that Eugene and Juan Jr. were
compelled to go elsewhere other than their place of destination, such compulsion was
obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims,
shows that the appellant actually seized the vessel through force and intimidation. The
direct testimony of Eugene is significant and enlightening -

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

A: Yes.

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

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

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

A: Four.

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

A: They approached somewhat suddenly and came aboard

the pumpboat (underscoring supplied).

Q: How many suddenly came aboard your pumpboat?

A: Only one.

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

A: When he boarded our pumpboat he aimed his revolver at us (underscoring

supplied).

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

xxxx

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

COURT:

Q: To whom did he aim that revolver?

A: He aimed the revolver on me.

TRIAL PROS. ECHAVEZ:

Q: What else did he do?

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

Q: What did he do with his revolver?

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

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

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

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

A: To Daan Tabogon. [6]

To sustain the defense and convert this case of piracy into one of grave
coercion would be to ignore the fact that a fishing vessel cruising in Philippine waters was
seized by the accused by means of violence against or intimidation of persons. As
Eugene Pilapil testified, the accused suddenly approached them and boarded their
pumpboat and Catantan aimed his revolver at them as he ordered complaining witness
Eugene Pilapil to "dapa" or lie down with face downwards, and then struck his face with
a revolver, hitting the lower portion of his left eye, after which, Catantan told his victims at
gun point to take them to Daan Tabogon.
The incident happened at 3:00 o'clock in the morning. The sudden appearance of
another pumpboat with four passengers, all strangers to them, easily intimidated the
Pilapil brothers that they were impelled to submit in complete surrender to the marauders.
The moment Catantan jumped into the other pumpboat he had full control of his
victims. The sight of a drawn revolver in his hand drove them to submission. Hence the
issuance of PD No. 532 designed to avert situations like the case at bar and discourage
and prevent piracy in Philippine waters.Thus we cite the succeeding "whereas" clauses
of the decree -

Whereas, reports from law-enforcement agencies reveal that lawless elements are still
committing acts of depredations upon the persons and properties of innocent and
defenseless inhabitants who travel from one place to another, thereby disturbing the
peace, order and tranquility of the nation and stunting the economic and social
progress of the people;
Whereas, such acts of depredations constitute either piracy or highway
robbery/brigandage which are among the highest forms of lawlessness condemned by
the penal statutes of all countries; and,

Whereas, it is imperative that said lawless elements be discouraged from perpetrating

such acts of depredations by imposing heavy penalty on the offenders, with the end
in view of eliminating all obstacles tothe economic, social, educational and
community progress of the people.

The Pilapil brothers are mere fisherfolk whose only means of livelihood is fishing in
sea waters. They brave the natural elements and contend with the unknown forces of the
sea to bring home a bountiful harvest. It is on these small fishermen that the townspeople
depend for the daily bread. To impede their livelihood would be to deprive them of their
very subsistence, and the likes of the accused within the purview of PD No. 532 are the
obstacle to the "economic, social, educational and community progress of the
people." Had it not been for the chance passing of another pumpboat, the fate of the
Pilapil brothers, left alone helpless in a floundering, meandering outrigger with a broken
prow and a conked-out engine in open sea, could not be ascertained.
While appellant insists that he and Ursal had no intention of depriving the Pilapils
permanently of their boat, proof of which they left behind the brothers with their boat, the
truth is, Catantan and Ursal abandoned the Pilapils only because their pumpboat broke
down and it was necessary to transfer to another pumpboat that would take them back to
their lair.Unfortunately for the pirates their "new" pumpboat ran out of gas so they were
apprehended by the police soon after the Pilapils reported the matter to the local
authorities.
The fact that the revolver used by the appellant to seize the boat was not produced
in evidence cannot exculpate him from the crime. The fact remains, and we state it again,
that Catantan and his co-accused Ursal seized through force and intimidation the
pumpboat of the Pilapils while the latter were fishing in Philippine waters.
WHEREFORE, finding no reversible error in the decision appealed from, the
conviction of accused-appellant EMILIANO CATANTAN y TAYONG for the crime of
piracy penalized under PD No. 532 and sentencing him accordingly to reclusion
perpetua, is AFFIRMED. Costs against accused-appellant.
SO ORDERED.
Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

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.

GANCAYCO, J.:

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:

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.)

CONTRARY TO ARTICLE 124 of the R.P.C.

Dagupan City, October 12, 1972.

(SGD.) VICENTE C. CALDONA

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.

Arbitrary Detention is committed by a public officer who, without legal grounds, detains a
person.1 The elements of this crime are the following:

1. That the offender is a public officer or employee.

2. That he detains a person.

3. 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 Detention.

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.

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 order:

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 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 him.

"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 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 prosecution.31 lawphi 1

Lastly, private respondent claims that by the lower court's granting of the motion to quash jeopardy
has already attached in his favor32 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
instance.33

WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned
Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let this case be remanded
to the appropriate trial court for further proceedings. No pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Paras, JJ., concur.

[G.R. No. 154130. October 1, 2003]

BENITO ASTORGA, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

DECISION
YNARES-SANTIAGO, J.:

This is a petition for review under Rule 45 of the Rules of Court, seeking the
reversal of a Decision of the Sandiganbayan in Criminal Case No. 24986, dated
July 5, 2001, as well as its Resolutions dated September 28, 2001 and July
[1]

10, 2002.
 On October 28, 1998, the Office of the Ombudsman filed the following
Information against Benito Astorga, Mayor of Daram, Samar, as well as a
number of his men for Arbitrary Detention:

That on or about the 1st day of September, 1997, and for sometime subsequent thereto,
at the Municipality of Daram, Province of Samar, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, a public officer, being
the Municipal Mayor of Daram, Samar, in such capacity and committing the offense
in relation to office, conniving, confederating and mutually helping with unidentified
persons, who are herein referred to under fictitious names JOHN DOES, who were
armed with firearms of different calibers, with deliberate intent, did then and there
willfully, unlawfully and feloniously detain Elpidio Simon, Moises dela Cruz,
Wenifredo Maniscan, Renato Militante and Crisanto Pelias, DENR Employees, at the
Municipality of Daram, by not allowing them to leave the place, without any legal and
valid grounds thereby restraining and depriving them of their personal liberty for nine
(9) hours, but without exceeding three (3) days.

CONTRARY TO LAW. [2]

On September 1, 1997, Regional Special Operations Group (RSOG) of the

Department of Environment and Natural Resources (DENR) Office No. 8,
Tacloban City sent a team to the island of Daram, Western Samar to conduct
intelligence gathering and forest protection operations in line with the
governments campaign against illegal logging. The team was composed of
Forester II Moises dela Cruz, Scaler Wenifredo Maniscan, Forest Ranger
Renato Militante, and Tree Marker Crisanto Pelias, with Elpidio E. Simon, Chief
of the Forest Protection and Law Enforcement Section, as team leader. The
team was escorted by SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian. [3]

The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m.,
where they saw two yacht-like boats being constructed. After consulting with
the local barangay officials, the team learned that the boats belonged to a
certain Michael Figueroa. However, since Figueroa was not around at the time,
the team left Brgy. Bagacay. [4]

En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more
boats being constructed in the vicinity of Brgy. Lucob-Lucob, Daram, Samar,
between 4:30-5:00 p.m., prompting them to stop and investigate. Thus,
Maniscan and Militante disembarked from the DENRs service pump boat and
proceeded to the site of the boat construction. There, they met Mayor
Astorga. After conversing with the mayor, Militante returned to their boat for the
purpose of fetching Simon, at the request of Mayor Astorga. [5]
 When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1
Capoquian, approached Mayor Astorga to try and explain the purpose of their
mission, Simon was suddenly slapped hard twice on the shoulder by Mayor
Astorga, who exclaimed, Puwede ko kamo papaglanguyon pag-uli ha
Tacloban. Ano, di ka maaram nga natupa ako? Natupa baya ako. Diri kamo
makauli yana kay puwede kame e charge ha misencounter. (I can make you
swim back to Tacloban. Dont you know that I can box? I can box. Dont you
know that I can declare this a misencounter?) Mayor Astorga then ordered
[6]

someone to fetch reinforcements, and forty-five (45) minutes later, or between

5:00-6:00 p.m., a banca arrived bearing ten (10) men, some of them dressed in
fatigue uniforms. The men were armed with M-16 and M14 rifles, and they
promptly surrounded the team, guns pointed at the team members. At this, [7]

Simon tried to explain to Astorga the purpose of his teams mission. He then [8]

took out his handheld ICOM radio, saying that he was going to contact his
people at the DENR in Catbalogan to inform them of the teams
whereabouts. Suddenly, Mayor Astorga forcibly grabbed Simons radio,
saying, Maupay nga waray kamo radio bis diri somabut an iyo opisina kon hain
kamo, bis diri kamo maka aro hin bulig. (Its better if you have no radio so that
your office would not know your whereabouts and so that you cannot ask for
help). Mayor Astorga again slapped the right shoulder of Simon, adding, Kong
[9]

siga kamo ha Leyte ayaw pagdad-a dinhi ha Samar kay diri kamo puwede ha
akon. (If you are tough guys in Leyte, do not bring it to Samar because I will not
tolerate it here.) Simon then asked Mayor Astorga to allow the team to go
[10]

home, at which Mayor Astorga retorted that they would not be allowed to go
home and that they would instead be brought to Daram. Mayor Astorga then
[11]

addressed the team, saying, Kon magdakop man la kamo, unahon an mga
dagko. Kon madakop niyo an mga dagko, an kan Figueroa dida ha Bagacay
puwede ko liwat ipadakop an akon. (If you really want to confiscate anything,
you start with the big-time. If you confiscate the boats of Figueroa at Brgy.
Bagacay, I will surrender mine.) Simon then tried to reiterate his request for
[12]

permission to leave, which just succeeded in irking Mayor Astorga, who angrily
said, Diri kamo maka uli yana kay dad on ko kamo ha Daram, para didto kita
mag uro istorya. (You cannot go home now because I will bring you to
Daram. We will have many things to discuss there.) [13]

The team was brought to a house where they were told that they would be
served dinner. The team had dinner with Mayor Astorga and several others at
a long table, and the meal lasted between 7:00-8:00 p.m. After dinner,
[14]

Militante, Maniscan and SPO1 Capoquian were allowed to go down from the
house, but not to leave the barangay. On the other hand, SPO3 Cinco and the
[15]

rest just sat in the house until 2:00 a.m. when the team was finally allowed to
leave.[16]
 Complainants filed a criminal complaint for arbitrary detention against Mayor
Astorga and his men, which led to the filing of the above-quoted Information.
Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he
pleaded not guilty to the offenses charged. At the trial, the prosecution
[17]

presented the testimonies of SPO1 Capoquian and SPO3 Cinco, as well as

their Joint Affidavit. However, the presentation of Simons testimony was not
[18]

completed, and none of his fellow team members came forward to

testify. Instead, the members of the team sent by the DENR RSOG executed a
Joint Affidavit of Desistance. [19]

On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of

the case as follows:

WHEREFORE, premises considered, judgment is hereby rendered finding accused

BENITO ASTORGA Y BOCATCAT guilty of Arbitrary Detention, and in the
absence of any mitigating or aggravating circumstances, applying the Indeterminate
Sentence Law, he is hereby sentenced to suffer imprisonment of four (4) months
of arresto mayor as minimum to one (1) year and eight (8) months of prision
correctional as maximum.

SO ORDERED. [20]

The accused filed a Motion for Reconsideration dated July 11, 2001 which [21]

was denied by the Sandiganabayan in a Resolution dated September 28,

2001. A Second Motion for Reconsideration dated October 24, 2001 was
[22] [23]

also filed, and this was similarly denied in a Resolution dated July 10, 2002. [24]

Hence, the present petition, wherein the petitioner assigns a sole error for
review:

5.1. The trial court grievously erred in finding the accused guilty of Arbitrary
Detention as defined and penalized under Article 124 of the Revised Penal Code,
based on mere speculations, surmises and conjectures and, worse, notwithstanding the
Affidavit of Desistance executed by the five (5) complaining witnesses wherein the
latter categorically declared petitioners innocence of the crime charged.
[25]

Petitioner contends that the prosecution failed to establish the required

quantum of evidence to prove the guilt of the accused, especially in light of the
[26]

fact that the private complainants executed a Joint Affidavit of

Desistance. Petitioner asserts that nowhere in the records of the case is there
[27]

any competent evidence that could sufficiently establish the fact that restraint
was employed upon the persons of the team members. Furthermore, he
[28]
claims that the mere presence of armed men at the scene does not qualify as
competent evidence to prove that fear was in fact instilled in the minds of the
team members, to the extent that they would feel compelled to stay in Brgy.
Lucob-Lucob. [29]

Arbitrary Detention is committed by any public officer or employee who,

without legal grounds, detains a person. The elements of the crime are:
[30]

1. That the offender is a public officer or employee.

2. That he detains a person.
3. That the detention is without legal grounds. [31]

That petitioner, at the time he committed the acts assailed herein, was then
Mayor of Daram, Samar is not disputed. Hence, the first element of Arbitrary
Detention, that the offender is a public officer or employee, is undeniably
present.
Also, the records are bereft of any allegation on the part of petitioner that
his acts were spurred by some legal purpose. On the contrary, he admitted that
his acts were motivated by his instinct for self-preservation and the feeling that
he was being singled out. The detention was thus without legal grounds,
[32]

thereby satisfying the third element enumerated above.

What remains is the determination of whether or not the team was actually
detained.
In the case of People v. Acosta, which involved the illegal detention of a
[33]

child, we found the accused-appellant therein guilty of kidnapping despite the

lack of evidence to show that any physical restraint was employed upon the
victim. However, because the victim was a boy of tender age and he was
warned not to leave until his godmother, the accused-appellant, had returned,
he was practically a captive in the sense that he could not leave because of
his fear to violate such instruction. [34]

In the case of People v. Cortez, we held that, in establishing the intent to

[35]

deprive the victim of his liberty, it is not necessary that the offended party be
kept within an enclosure to restrict her freedom of locomotion. At the time of her
rescue, the offended party in said case was found outside talking to the owner
of the house where she had been taken. She explained that she did not attempt
to leave the premises for fear that the kidnappers would make good their threats
to kill her should she do so. We ruled therein that her fear was not baseless as
the kidnappers knew where she resided and they had earlier announced that
their intention in looking for her cousin was to kill him on sight. Thus, we
concluded that fear has been known to render people immobile and that
appeals to the fears of an individual, such as by threats to kill or similar threats,
are equivalent to the use of actual force or violence. [36]

The prevailing jurisprudence on kidnapping and illegal detention is that the

curtailment of the victims liberty need not involve any physical restraint upon
the victims person. If the acts and actuations of the accused can produce such
fear in the mind of the victim sufficient to paralyze the latter, to the extent that
the victim is compelled to limit his own actions and movements in accordance
with the wishes of the accused, then the victim is, for all intents and purposes,
detained against his will.
In the case at bar, the restraint resulting from fear is evident. Inspite of their
pleas, the witnesses and the complainants were not allowed by petitioner to go
home. This refusal was quickly followed by the call for and arrival of almost a
[37]

dozen reinforcements, all armed with military-issue rifles, who proceeded to

encircle the team, weapons pointed at the complainants and the
witnesses. Given such circumstances, we give credence to SPO1
[38]

Capoquians statement that it was not safe to refuse Mayor Astorgas orders. It [39]

was not just the presence of the armed men, but also the evident effect these
gunmen had on the actions of the team which proves that fear was indeed
instilled in the minds of the team members, to the extent that they felt compelled
to stay in Brgy. Lucob-Lucob. The intent to prevent the departure of the
complainants and witnesses against their will is thus clear.
Regarding the Joint Affidavit of Desistance executed by the private
complainants, suffice it to say that the principles governing the use of such
instruments in the adjudication of other crimes can be applied here. Thus,
in People v. Ballabare, it was held that an affidavit of desistance is merely an
additional ground to buttress the defenses of the accused, not the sole
consideration that can result in acquittal. There must be other circumstances
which, when coupled with the retraction or desistance, create doubts as to the
truth of the testimony given by the witnesses at the trial and accepted by the
judge. Here, there are no such circumstances. Indeed, the belated claims
[40]

made in the Joint Affidavit of Desistance, such as the allegations that the
incident was the result of a misunderstanding and that the team acceded to
Mayor Astorgas orders out of respect, are belied by petitioners own admissions
to the contrary. The Joint Affidavit of Desistance of the private complainants
[41]

is evidently not a clear repudiation of the material points alleged in the

information and proven at the trial, but a mere expression of the lack of interest
of private complainants to pursue the case. This conclusion is supported by one
of its latter paragraphs, which reads:
 11. That this affidavit was executed by us if only to prove our sincerity and
improving DENR relations with the local Chiefs Executive and other
official of Daram, Islands so that DENR programs and project can be
effectively implemented through the support of the local officials for the
betterment of the residence living conditions who are facing difficulties
and are much dependent on government support. [42]

Petitioner also assails the weight given by the trial court to the evidence,
pointing out that the Sandiganbayans reliance on the testimony of SPO1
Capoquian is misplaced, for the reason that SPO1 Capoquian is not one of the
private complainants in the case. He also makes much of the fact that
[43]

prosecution witness SPO1 Capoquian was allegedly not exactly privy to, and
knowledgeable of, what exactly transpired between herein accused and the
DENR team leader Mr. Elpidio E. Simon, from their alleged confrontation, until
they left Barangay Lucob-Lucob in the early morning of 2 September 1997. [44]

It is a time-honored doctrine that the trial courts factual findings are

conclusive and binding upon appellate courts unless some facts or
circumstances of weight and substance have been overlooked,
misapprehended or misinterpreted. Nothing in the case at bar prompts us to
[45]

deviate from this doctrine. Indeed, the fact that SPO1 Capoquian is not one of
the private complainants is completely irrelevant. Neither penal law nor the
rules of evidence requires damning testimony to be exclusively supplied by the
private complainants in cases of Arbitrary Detention. Furthermore, Mayor
Astorgas claim that SPO1 Capoquian was not exactly privy to what transpired
between Simon and himself is belied by the evidence. SPO1 Capoquian
testified that he accompanied Simon when the latter went to talk to
petitioner. He heard all of Mayor Astorgas threatening remarks. He was with
[46] [47]

Simon when they were encircled by the men dressed in fatigues and wielding
M-16 and M-14 rifles. In sum, SPO1 Capoquian witnessed all the
[48]

circumstances which led to the Arbitrary Detention of the team at the hands of
Mayor Astorga.
Petitioner submits that it is unclear whether the team was in fact prevented
from leaving Brgy. Lucob-Lucob or whether they had simply decided to while
away the time and take advantage of the purported hospitality of the
accused. On the contrary, SPO3 Cinco clearly and categorically denied that
[49]

they were simply whiling away the time between their dinner with Mayor Astorga
and their departure early the following morning. SPO1 Capoquian gave similar
[50]

testimony, saying that they did not use the time between their dinner with Mayor
Astorga and their departure early the following morning to enjoy the place and
that, given a choice, they would have gone home. [51]
 Petitioner argues that he was denied the cold neutrality of an impartial
judge, because the ponente of the assailed decision acted both as magistrate
and advocate when he propounded very extensive clarificatory questions on
the witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle arbiter
during a trial. It can propound clarificatory questions to witnesses in order to
ferret out the truth. The impartiality of the court cannot be assailed on the
ground that clarificatory questions were asked during the trial. [52]

Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty

beyond reasonable doubt of Arbitrary Detention. Article 124 (1) of the Revised
Penal Code provides that, where the detention has not exceeded three days,
the penalty shall be arresto mayor in its maximum period to prision
correccional in its minimum period, which has a range of four (4) months and
one (1) day to two (2) years and four (4) months. Applying the Indeterminate
Sentence Law, petitioner is entitled to a minimum term to be taken from the
penalty next lower in degree, or arresto mayor in its minimum and medium
periods, which has a range of one (1) month and one (1) day to four (4)
months. Hence, the Sandiganbayan was correct in imposing the indeterminate
penalty of four (4) months of arresto mayor, as minimum, to one (1) year and
eight (8) months of prision correccional, as maximum.
Before closing, it may not be amiss to quote the words of Justice Perfecto
in his concurring opinion in Lino v. Fugoso, wherein he decried the impunity
enjoyed by public officials in committing arbitrary or illegal detention, and called
for the intensification of efforts towards bringing them to justice:

The provisions of law punishing arbitrary or illegal detention committed by

government officers form part of our statute books even before the advent of
American sovereignty in our country. Those provisions were already in effect during
the Spanish regime; they remained in effect under American rule; continued in effect
under the Commonwealth. Even under the Japanese regime they were not repealed.
The same provisions continue in the statute books of the free and sovereign Republic
of the Philippines. This notwithstanding, and the complaints often heard of violations
of said provisions, it is very seldom that prosecutions under them have been instituted
due to the fact that the erring individuals happened to belong to the same government
to which the prosecuting officers belong. It is high time that every one must do his
duty, without fear or favor, and that prosecuting officers should not answer with cold
shrugging of the shoulders the complaints of the victims of arbitrary or illegal
detention.

Only by an earnest enforcement of the provisions of articles 124 and 125 of the
Revised Penal Code will it be possible to reduce to its minimum such wanton
trampling of personal freedom as depicted in this case. The responsible officials
should be prosecuted, without prejudice to the detainees right to the indemnity to
which they may be entitled for the unjustified violation of their fundamental rights. [53]

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The

Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001
finding petitioner BENITO ASTORGA guilty beyond reasonable doubt of the
crime of Arbitrary Detention and sentencing him to suffer the indeterminate
penalty of four (4) months of arresto mayor, as minimum, to one (1) year and
eight (8) months of prision correccional, as maximum, is AFFIRMED in toto.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.
Azcuna, J., on leave.

G.R. No. L-13484 May 20, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
DOMINADOR CAMERINO, MANUEL PAKINGAN, CRISANTO SARATAN, BIENVENIDO
OSTERIA, ET AL.,defendants-appellees.

Actg. Solicitor General Guillermo E. Torres and Solicitor Eriberto D. Ignacio for appellant.
Avelino A. Velasco for appellees.

MONTEMAYOR, J.:

Dominador Camerino and eighty-six others were accused before the Court of First Instance of
Cavite of the crime of sedition, said to have been committed on or about and during the period
comprised by and between the months of October, 1953, to November 15, 1953 and for sometime
prior thereto; under an information charging conspiracy among the said accused in having allegedly
perpetrated for political and social ends, insistent, repeated and continuous acts of hate, terrorism
and revenge against private persons, leaders, members and sympathizers of the Nacionalista Party
in the town of Bacoor, Cavite, and frustrating by force, threats and violence, and intimidation the free
expression of the popular will in the election held on November 10, 1953. The information described
in detail the manner in which the alleged seditious acts were performed, specifying the dates and the
places where they were committed and the persons who were victims thereof, under fourteen
different overt acts of sedition. Before arraignment, forty-eight of the
eighty-seven accused, headed by Dominador Camerino, filed a motion to quash the information on
the ground of double jeopardy, claiming in support thereof that they had been previously convicted
or been in jeopardy of being convicted and/or acquitted of the offense charged in other cases of the
same nature before the court.

The Assistant Provincial Fiscal filed written opposition to the motion, saying that although it was
alleged in the information that the accused had been charged with various crimes under different
and separate informations, that would not place them in double jeopardy, because those previous
charges were being specified in the information only as a bill of particulars for the purpose of
describing in detail the offense of sedition, but not to hold the defendants liable for punishment under
said separate and different specifications; in other words, the specifications describing separate
crimes were alleged in the information merely to complete the narration of facts which constitute the
crime of sedition.

Later, all the accused filed a supplemental motion to quash, raising as additional grounds that more
than one offense was charged, and that the criminal action or liability of said defendants had been
extinguished.

On March 14, 1956, the trial court issued an order sustaining the reasons of the motion to quash and
dismissing the information on the grounds:(1) that the information charged more than one offense,
(2) that it was vague, ambiguous and uncertain, (3) that it described crimes for which some of the
accused had either been convicted or acquitted, and (4) some violation of the election law described
in the specification had already prescribed. A motion for reconsideration filed by the Fiscal was
denied. The Government is appealing from that order of dismissal, as well as the order denying the
motion for reconsideration.

In determining the present appeal, we deem it necessary to discuss only the first ground of the
dismissal of the information by the trial court, namely, multiplicity of offenses, that is to say, that the
information allegedly charged more than one offense. We agree with the Provincial Fiscal and the
Solicitor General representing the Government that the accused herein were being charged only
with one offense, namely, that of sedition, defined in Article 139 of the Revised Penal Code, as
amended by Commonwealth Act No. 202, and penalized under Article 140 of the same code. the
fourteen different acts or specifications charging some or all of the accused with having committed
the offenses charged therein, were included in the information merely to describe and to narrate the
different and specific acts the sum total of which constitutes the crime of sedition. Different and
separate acts constituting different and separate offenses may serve as a basis for prosecuting the
accused to hold them criminally liable for said different offenses. Yet, those different acts of offenses
may serve merely as a basis for the prosecution of one single offense like that of sedition. For
instance, one may be accused of sedition, and at the same time be prosecuted under another
information for murder or homicide as the case may be, if the killing was done in pursuance of and to
carry out the acts constituting sedition. In case of the People vs. Cabrera, 43 Phil., 64, this Tribunal
said:

The nearest analogy to the two crimes of murder and sedition growing out of practically the
same facts, which can be found in the American authorities, relate to the crimes of assault
and riot or unlawful assembly. A majority of the American courts have held that the offense of
unlawful assembly and riot and the offense of assault and battery are distinct offense; and
that conviction or an acquittal for either does not bar a prosecution for other offense, even
though based on the same acts. (Freeland vs. People (1855), 16 Ill., 380; U.S. vs. Peaco
(1835), 27 Fed. Cas., 477; People vs. Vasquez (1905), 9 Puerto Rico, 488; contra, State vs.
Lindsay (18868), 61 N.C., 458.)

It is merely stating the obvious to say that sedition is not the same offense as murder.
Sedition is a crime against public order; murder is a crime against persons. Sedition is a
crime directed against the existence of the State, the authority of the government, and the
general public tranquility; murder is a crime directed against the lives of individuals. (U.S. vs.
Abad [1902], 1 Phil., 437.) Sedition in its more general sense is the raising of commotions or
disturbances in the state; murder at common law is where a person of sound mind and
 discretion unlawfully kills any human being, in the peace of the sovereign, with malice
aforethought, express or implied.

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

In the case of U.S. vs. Cernias, 10 Phil., 682, this Court held that while it is true that each of those
acts charged against the conspirators was itself a crime, the prosecutor in setting them out in the
information did no more than to furnish the defendants with a bill of particulars of the facts which it
intended to prove at the trial, not only as a basis upon which to be found an inference of guilt of the
crime of conspiracy but also as evidence of the extremely dangerous and wicked nature of that
conspiracy.

The charge is not defective for duplicity when one single crime is set forth in different modes
prescribed by law for its commission, or the felony is set forth under different counts
specifying the way of its perpetuation, or the acts resulted from a single criminal impulse.
Neither is there duplicity when the other offense described is but an ingredient or an
essential element of the real offense charged nor when several acts are related in describing
the offense. (Padilla: Criminal Procedure Annotated, 1959 ed., p. 101).

In the case of People vs. Bacolod, 89 Phil., 621, the defendant therein was convicted on a plea of
guilty of physical injuries through reckless imprudence. Based on the same facts, he was also
accused of having caused public disturbance. The plea of double jeopardy interposed by the
accused was rejected on the ground that the two offenses were not the same, although they arose
from the same act.

Following the reasoning of the trial court that more than one offense was charged, the trial court
should have ordered that the information be amended, or if that was not possible, that a new
information be filed.

Under section 2 of this Rule, the Court may deny or sustain the motion to quash but may not
defer it till the trial of the case on the merits. In sustaining the motion, the court may order the
filing of a new information or may dismiss the case. In the new information, the defects of the
previous information may be cured. For instance, if the motion to quash is sustained on the
ground that more than one offense is charged in the information, the court may order that
another information be filed charging only one offense. But the court may or may not issue
such order in the exercise of its discretion. The order may be made if the defects found in the
first information may be cured in a new information. If the order is made, the accused, if he is
in custody, should not be discharged, unless otherwise, admitted to bail. But if no such order
is made, or, having been made, the prosecuting attorney fails to file another information
within the time specified by the court, the accused, if in custody must be discharged, unless
he is also in custody for another charge, or if is out on bail, the bail must be exonerated. In
such event, however, the fiscal is free to institute another criminal proceeding since such
 ground of objection is not a bar to another prosecution for the same offense. (Moran,
Comments on the Rules of Court, 1957 ed., Vol. II, pp. 778-779).

In conclusion, we hold that the information filed in this case did not charged more than one offense
but only that of sedition; that in specifying the separate and different criminal acts attributed to the
defendants, it was not the purpose or intention of the Government to hold them criminally liable in
the present proceedings, but merely to complete the narration of facts, though specifying different
offenses which as a whole, supposedly constitute the crime of sedition. Consequently, we believe
that the information is valid.

We deem it unnecessary to discuss the other points raised in the appeal.

In view of the foregoing, the appealed orders are hereby set aside and the case is hereby remanded
to the trial court of further proceedings, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez
David, JJ., concur.

G.R. No. 95322 March 1, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Silvestre L. Tagarao for appellant Pablito Domasian.

Lino M. Patajo for appellant Dr. Samson Tan.

CRUZ, J.:

The boy was detained for only about three hours and was released even before his parents received
the ransom note. But it spawned a protracted trial spanning all of 8 years and led to the conviction of
the two accused.1

The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in question. The
accused were Pablito Domasian and Samson Tan, the latter then a resident physician in the hospital
owned by Enrico's parents. They were represented by separate lawyers at the trial and filed
separate briefs in this appeal.

The evidence of the prosecution showed that in the morning of March 11, 1982, while Enrico was
walking with a classmate along Roque street in the poblacion of Lopez, Quezon, he was approached
by a man who requested his assistance in getting his father's signature on a medical certificate.
Enrico agreed to help and rode with the man in a tricycle to Calantipayan, where he waited outside
while the man went into a building to get the certificate. Enrico became apprehensive and started to
cry when, instead of taking him to the hospital, the man flagged a minibus and forced him inside,
holding him firmly all the while. The man told him to stop crying or he would not be returned to his
father. When they alighted at Gumaca, they took another tricycle, this time bound for the municipal
building from where they walked to the market. Here the man talked to a jeepney driver and handed
him an envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle
headed for San Vicente, with the man still firmly holding Enrico, who continued crying. This aroused
the suspicion of the driver, Alexander Grate, who asked the man about his relationship with the boy.
The man said he and the boy were brothers, making Grate doubly suspicious because of the
physical differences between the two and the wide gap between their ages. Grate immediately
reported the matter to two barangay tanods when his passengers alighted from the tricycle. Grate
and the tanods went after the two and saw the man dragging the boy. Noticing that they were being
pursued, the man told Enrico to run fast as their pursuers might behead them. Somehow, the man
managed to escape, leaving Enrico behind. Enrico was on his way home in a passenger jeep when
he met his parents, who were riding in the hospital ambulance and already looking for him.2

At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope
containing a ransom note. The note demanded P1 million for the release of Enrico and warned that
otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After
comparing it with some records in the hospital, he gave the note to the police, which referred it to the
NBI for examination.3

The test showed that it bad been written by Dr. Samson Tan.4 On the other hand, Enrico was shown
a folder of pictures in the police station so be could identify the man who had detained him, and he
pointed to the picture of Pablito Domasian.5 Domasian and Tan were subsequently charged with the
crime of kidnapping with serious illegal detention in the Regional Trial Court of Quezon.6

The defense of both accused was denial and alibi. Domasian claimed that at the time of the incident
he was watching a mahjong game in a friend's house and later went to an optical clinic with his wife
for the refraction of his eyeglasses.7 Dr. Tan for his part said he was in Manila.8

After trial Judge Enrico A. Lanzanas found both accused guilty as charged and sentenced them to
suffer the penalty of reclusion perpetua and all accessory penalties. They were also required to pay
P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral damages and attorney's fees.

In the present appeal, the accused-appellants reiterate their denial of any participation in the incident
in question. They belittle the credibility of the prosecution witnesses and submit that their own
witnesses are more believable. Tan specifically challenges the findings of the NBI and offers anew
the opposite findings of the PC/INP showing that he was not the writer of the ransom note. He
maintains that in any case, the crime alleged is not kidnapping with serious illegal detention as no
detention in an enclosure was involved. If at all, it should be denominated and punished only as
grave coercion. Finally, both Domasian and Tan insist that there is no basis for the finding of a
conspiracy between them to make them criminally liable in equal degree.

First, on the credibility of the witnesses. This is assessed in the first instance by the trial judge,
whose finding in this regard is received with much respect by the appellate court because of his
opportunity to directly observe the demeanor of the witnesses on the stand.

In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim himself, who
positively identified Domasian as the person who detained him for three hours. The trial court
observed that the boy was "straight-forward, natural and consistent" in the narration of his detention.
The boy's naivete made him even more believable. Tirso Ferreras, Enrico's classmate and also his
age, pointed to Domasian with equal certainty, as the man who approached Enrico when they were
walking together that morning of March 11, 1982. Grate, the tricycle driver who suspected Enrico's
companion and later chased him, was also positive in identifying Domasian. All these three
witnesses did not know Domasian until that same morning and could have no ill motive in testifying
against him. By contrast, Eugenia Agtay, who testified for the defense, can hardly be considered a
disinterested witness because she admitted she had known Domasian for 3 years.

The defense asks why Domasian openly took Enrico to several public places if the intention was to
kidnap and detain him. That is for Domasian himself to answer. We do no have to probe the reasons
for the irrational conduct of an accused. The more important question, as we see it, is why Domasian
detained Enrico in the first place after pretending he needed the boy's help. That is also for
Domasian to explain. As for Enrico's alleged willingness to go with Domasian, this was manifested
only at the beginning, when he believed the man sincerely needed his assistance. But he was soon
disabused. His initial confidence gave way to fear when Domasian, after taking him so far away from
the hospital where he was going, restrained and threatened him if he did not stop crying.

Domasian's alibi cannot stand against his positive identification by Enrico, Grate and Ferreras, let
alone the contradictions made by his corroborating witness, Dr. Irene Argosino, regarding the time
he was in the optical clinic and the manner of his payment for the refraction.9 Tan's alibi is not
convincing either. The circumstance that he may have been in Manila at the time of the incident
does not prove that he could not have written the ransom note except at that time.

Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:

The handwriting of a person may be proved by any witness who believes it to be the
handwriting of such person and has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged and has thus
acquired knowledge of the handwriting of such person. Evidence respecting the
handwriting may also be given by a comparison, made by the witness or the court
with writings admitted or treated as genuine by the party against whom the evidence
is offered or proved to be genuine to the satisfaction of the judge.

Two expert witnesses were presented in the case at bar, one from the NBI, 10 who opined that the
ransom note and the standard documents were written by one and the same person, and another
from the PC/INP 11 who expressed a contrary conclusion. The trial court chose to believe the NBI
expert because his examination and analysis "was more comprehensive than the one conducted by
the PC/INP handwriting expert, who virtually limited his reliance on the perceived similarities and
dissimilarities in the pattern and style of the writing, thereby disregarding the basic principle in
handwriting identification that it is not the form alone nor anyone feature but rather a combination of
all the qualities that identify."

We have held that the value of the opinion of a handwriting expert depends not upon his mere
statements of whether a writing is genuine or false, but upon the assistance he may afford in
pointing out distinguishing marks, characteristics and discrepancies in and between genuine and
false specimens of writing which would ordinarily escape notice or detection from an unpracticed
observer. 12 The test of genuineness ought to be the resemblance, not the formation of letters in
some other specimens but to the general character of writing, which is impressed on it as the
involuntary and unconscious result
of constitution, habit or other permanent course, and is, therefore itself permanent. 13

Presented with the conflicting opinions of the witnesses in the case at bar, the Court feels that the
scales should tilt in favor of the prosecution. Significantly, the NBI opinion was bolstered by the
testimony of Agra, who believed that the ransom note was written by Tan, with whose handwriting he
was familiar because they had been working in the hospital for four years and he had seen that
handwriting every day in Tan's prescriptions and daily reports. 14

Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or the
deliberate imitation of another person's signature. In the case before us, there was in fact an effort
to disguise the ransom note writer's penmanship to prevent his discovery.

As for the nature of the crime committed, Article 267 of the Revised Penal Code provides as follows:

Art. 267. Kidnapping and serious illegal detention. Any private individual who shall
kidnap or detain another, or in any manner deprive him of his liberty, shall suffer the
penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained; of if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person; even if none of the
circumstances above-mentioned were present in the commission of the offense.

Contrary to Tan's submission, this crime may consist not only in placing a person in an enclosure but
also in detaining him or depriving him in any manner of his liberty. 16 In the case at bar, it is noted that
although the victim was not confined in an enclosure, he was deprived of his liberty when Domasian
restrained him from going home and dragged him first into the minibus that took them to the
municipal building in Gumaca, thence to the market and then into the tricycle bound for San Vicente.
The detention was committed by Domasian, who was a private individual, and Enrico was a minor at
that time. The crime clearly comes under Par. 4 of the above-quoted article.

Tan claims that the lower court erred in not finding that the sending of the ransom note was an
impossible crime which he says is not punishable. His reason is that the second paragraph of Article
4 of the Revised Penal Code provides that criminal liability shall be incurred "by any person
performing an act which would be an offense against persons or property, were it not for the inherent
impossibility of its accomplishment or on account of the employment of inadequate or ineffectual
means." As the crime alleged is not against persons or property but against liberty, he argues that it
is not covered by the said provision.

Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him, thus:

Art. 4. Criminal liability. Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act done be
different from that which he intended.

xxx xxx xxx

Even before the ransom note was received, the crime of kidnapping with serious illegal detention
had already been committed. The act cannot be considered an impossible crime because there was
no inherent improbability of its accomplishment or the employment of inadequate or ineffective
means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense,
which had already been consummated when Domasian deprived Enrico of his liberty. The sending
of the ransom note would have had the effect only of increasing the penalty to death under the last
paragraph of Article 267 although this too would not have been possible under the new Constitution.

On the issue of conspiracy, we note first that it exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it, whether they act through
physical volition of one or all, proceeding severally or collectively. 17

It is settled that conspiracy can be inferred from and proven by the acts of the accused themselves
when said acts point to a joint purpose and design, concerted action and community of interests. 18 In
the instant case, the trial court correctly held that conspiracy was proved by the act of Domasian in
detaining Enrico; the writing of the ransom note by Tan; and its delivery by Domasian to Agra. These
acts were complementary to each other and geared toward the attainment of the common ultimate
objective, viz., to extort the ransom of P1 million in exchange for Enrico's life.

The motive for the offense is not difficult to discover. According to Agra, Tan approached him six
days before the incident happened and requested a loan of at least P15,000.00. Agra said he had no
funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a million
pesos if he really wanted to help. 19 The refusal obviously triggered the plan to kidnap Enrico and
demand P1 million for his release.

The constitutional issues raised by Domasian do not affect the decision in this case. His claim that
he was arrested without warrant and then tortured and held incommunicado to extort a confession
from him does not vitiate his conviction. He never gave any confession. As for the allegation that the
seizure of the documents used for comparison with the ransom note was made without a search
warrant, it suffices to say that such documents were taken by Agra himself and not by the NBI
agents or other police authorities. We held in the case of People vs. Andre Marti, 20 that the Bill of
Rights cannot be invoked against acts of private individuals, being directed only against the
government and its law-enforcement agencies and limitation on official action.

We are satisfied that Tan and Domasian, in conspiracy with each other, committed the crime of
kidnapping as defined and penalized under Article 267 of the Revised Penal Code and so deserve
the penalty imposed upon them by the trial court.

WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-appellants.

Let a copy of this decision be sent to the Commission on Human Rights for investigation of the
alleged violation of the constitutional rights of Pablito Domasian.

SO ORDERED.

Grio-Aquino, Bellosillo and Quiason, JJ., concur.

[G.R. No. 9294. March 30, 1914. ]

 THE UNITED STATES, Plaintiff-Appellee, v. EULOGIO SANCHEZ, Defendant-Appellant.

Leodegario Azarraga for Appellant.

Acting Attorney-General Harvey for Appellee.

SYLLABUS

1. POLICE; DUTY TO ARREST LAWBREAKERS. One of the duties of the police is to arrest lawbreakers in
order to place them at the disposal of the judicial or executive authorities upon whom devolves the duty to
investigate the act constituting the violation or to prosecute and secure the punishment thereof. One of the
means conducing to these ends being the identification of the person of the alleged criminal or lawbreaker,
the duty that directly devolves upon the police to make the arrest or detentions for the purposes of such
investigation cannot be questioned.

2. ID.; ID.; ARBITRARY DETENTION. The policeman who in compliance with the orders of his chief and,
for the purpose of identifying him arrests a person suspected of being the perpetrator of a crime which it is
reasonable to believe has been committed, is not guilty of the crime of arbitrary detention, because he has
acted solely in the performance of his duty.

3. ID.; ID.; ID. It is not necessary that the crime should have been established as a fact in order to
regard such detention as legal. "The legality of the detention does not depend upon the actual commission
of the crime, but . . . upon the nature of the deed, wherefrom such characterization may reasonably be
inferred by the officer or functionary to whom the law at that moment leaves the decision for the urgent
purpose of suspending the liberty of the citizen." (Decision of the supreme court of Spain, January 27,
1885.)

DECISION

ARAULLO, J. :

Eulogio Sanchez was accused of the crime of illegal detention, provided for and punished in article 200 of
the Penal Code, for having detained one Benigno Aranzanso by keeping him in the municipal jail of the
pueblo of Caloocan, Province of Rizal, for a period of less than three days.

The Court of First Instance of said province sentenced the defendant as guilty of said crime to a fine of
1,000 pesetas and to the corresponding subsidiary imprisonment in case of insolvency, such imprisonment
not to exceed six months. From this judgment the defendant appealed.

It appears from the evidence that the defendant, being a municipal policeman of the town of Caloocan, did,
at about 9 oclock in the morning of August 13, 1912, arrest Benigno Aranzanso in the cockpit of Maypajo of
that town and take him to the town hall, where he was detained until just before nightfall of the same day,
when he was set at liberty by order of the president. But it also appears from the same evidence: (1) That
both the municipal president and the sergeant of police, who was acting as chief of police of the town, had
information that two nights previous a robbery had occurred in a boat on the Maypajo River in that
jurisdiction, for the boatman had presented himself to the said sergeant and indicated as one of the
assailants of the boat an individual who was the son of one Eto and who had been in a billiard room the
same night; (2) that on the said night of the 12th of August the Constabulary had been in Caloocan to
investigate, in company with the policemen of the pueblo, a robbery that had occurred in a billiard room,
and the said sergeant had acquired the information that Benigno Aranzanso had been in that billiard room
that night and that about five minutes before he had left on the run; (3) that in view of this the sergeant of
police directed not only the defendant Eulogio Sanchez but also all the patrolmen under his orders to look
for the said Benigno Aranzanso in order that he might be identified by the boatmen; and (4) that by virtue
of said order and because the description they had given him of the person who had been in the billiard
room fitted Aranzanso, the defendant Eulogio Sanchez proceeded to arrest him in the cockpit on the next
morning, the 13th, and took him to the town hall, as has already been stated, where he remained in
confinement until before nightfall of the same day. He was not identified because when the sergeant of
police arrived at the station he had already been set at liberty. No warrant was previously issued for his
detention because the fact had not been reported to the justice of the peace and the 13th of August was a
legal holiday.

The defendant, therefore, acted in compliance with orders of his chief, the sergeant of police, in asserting
Benigno Aranzanso and his detention was justified for the purpose of identifying his person, since, according
to the sergeant himself, reasonable grounds existed for believing in the existence of a crime and suspicion
pointed to that individual.

It was not necessary that the fact of the robbery committed in the boat should have been established in
order to regard such detention as legal: jgc:chan robles .com.p h

"The legality of the detention does not depend upon the fact of the crime, but . . . upon the nature of the
deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the
law at that moment leaves the decision for the urgent purpose of suspending the liberty of the citizen."
(Decision of the supreme court of Spain, January 27, 1885.)

One of the duties of the police is to arrest lawbreakers in order to place them at the disposal of the judicial
or executive authorities upon whom devolves the duty to investigate the act constituting the violation or to
prosecute and secure the punishment thereof. One of the means conducing to these ends being the
identification of the person of the alleged criminal or lawbreaker, the duty that directly devolves upon the
police to make the arrests or detentions for the purposes of such investigation cannot be questioned.

The same supreme court has so declared in a decision of April 21, 1884, in a case wherein the person who
had threatened another was unknown and suspicion pointed to a man whom an officer of the law proceeded
to arrest. The court said: jgc:chan roble s.com.p h

"The mere fact that an officer of the law compelled a person to appear before the chief of the department to
establish or prove his identity does not justify the classification of illegal detention. It was merely in the
nature of an administrative measure, justified by the suspicion that he may have made certain threats
against another person." cralaw virt ua1aw lib rary

It is, therefore, beyond dispute that the defendant Eulogio Sanchez did not commit the crime charged
against him in the complaint, and we therefore reverse the judgment appealed from and freely acquit him;
with the costs of both instances de officio.

Arellano, C.J., Carson Moreland and Trent, JJ., concur.

G.R. No. L-2128 May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners,

vs.
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY
OF MANILA,respondents.

Enrique Q. Jabile for petitioners.

Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Naawa and D. Guinto Lazaro for
respondents.

FERIA, J.:

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

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

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

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

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

Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code
formerly in force of these Islands, which penalized a public officer other than a judicial officer who,
without warrant, "shall arrest a person upon a charge of crime and shall fail to deliver such person to
the judicial authority within twenty four hours after his arrest." There was no doubt that a judicial
authority therein referred to was the judge of a court of justice empowered by law, after a proper
investigation, to order the temporary commitment or detention of the person arrested; and not the
city fiscals or any other officers, who are not authorized by law to do so. Because article 204, which
complements said section 202, of the same Code provided that "the penalty of suspension in its
minimum and medium degrees shall be imposed upon the following persons: 1. Any judicial officer
who, within the period prescribed by the provisions of the law of criminal procedure in force, shall fail
to release any prisoner under arrest or to commit such prisoner formally by written order containing a
statement of the grounds upon which the same is based."

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

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

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

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

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

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

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

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

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

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

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

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

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

Separate Opinions

PERFECTO, J.:, concurring:

Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30 in the morning of April
2, 1948, upon complaint of Bernardino Malinao, for the crime of alleged robbery.

The fact is alleged expressly in respondent's answer supported by the affidavit of Benjamin Dumlao
(Exhibit 1), the patrolman who made the arrest. Therein it is also alleged that petitioners were
"finally" placed under arrest at 4:30 p.m. and 5:00 p.m. respectively, on the same day, April 2, l948.

The distinction between the two arrests, the apprehension made at 11:00 a.m. and the "final arrest at
4:30 and 5:00 p.m., is purely academic or imaginary. There was but one arrest, effected at 11:00
a.m., April 2, 1948, and continued without interruption until the petition had been filed with us April 5,
1948, at the hearing on the next day. Until the moment we are writing this opinion we have not heard
that petitioners have been released at any time.

Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal complaint was filed with
the fiscal's office of Manila, and that by said filing their duty to deliver arrested persons, within six
hours from their arrest, to a proper judicial authority has been duly complied with.

There is no dispute that no warrant of arrest has ever been issued for the apprehension of
petitioners.

Petitioners pray for their immediate release, alleging that, as the six-hour period provided in article
125 of the Revised Penal Code had expired, their continued detention is illegal.

Article 125 of the Revised Penal Code provides for the penalty of arresto mayor or in its maximum
period to reclusion temporal, or from 4 months and 11 days to 20 years imprisonment, for the crime
of a public officer or employee who, after detaining a person, "shall fail to deliver such person to the
proper judicial authorities within the period of six hours."

Both parties implying from the above provision that after six hours of said failure, petitioners shall be
entitled to be released, discussed the question whether there is such failure or not.

Upon the very facts alleged by respondents and supported by documentary evidence accompanying
it, there should not be any dispute that there is such failure.

(a) Respondents have not delivered the persons of petitioners to any authority, and much less to any
judicial authority.
(b) Their filing of a complaint with the office of the fiscal of Manila is not a delivery of the persons of
petitioners. Said persons are not a complaint. A complaint, whether oral or written, can never be
elevated to the category of the person. No one is crazy enough to confuse or identify a person with a
complaint.

(c) Even in the false hypothesis that respondents, by filing the complaint, intended to make a
delivery of the persons of petitioners, if not actually, constructively, the fiscal's office is not a judicial
authority.

(d) Under our Constitution and laws, judicial authorities comprehend only courts of justice, such as
the Supreme Court and all other inferior Court, and justices and judges. The authority possessed
and exercised by judicial authorities is judicial, and the Constitution(section 1, Article VIII) vests the
judicial power exclusively "in one Supreme Court and in such inferior courts as may be established
by law."

Respondents' pretension in making the fiscal of Manila a judicial authority is absolutely groundless,
upon the clear letter of the fundamental law. Counsel for respondents himself had to admit that said
officer belongs to the administrative or executive department. Under the tripartite system of the
government established by the Constitution, it is extreme absurdity to make an administrative or
executive officer, or any officer of the executive department or branch, a judicial authority. Such will
make of separation of powers a madman's illusion.

That a fiscal is not a judicial authority has been unmistakably declared in the decision in Lino vs.
Fugoso, L-1159, 43 Off. Gaz., 1214. The statement made therein that there was yet no purpose of
deciding whether a fiscal is a judicial authority or not, is just a rhetorical figure that is a judicial
authority or not, is just a rhetorical figure that should not deceive any one. All those who can read,
will that the decision has made the declaration. It is there stated in plain language that the fiscal is
"unlike" a judicial authority.

"Unlike" means, as an elementary school student knows, not like, dissimilar, diverse, different.

No warrant of arrest having been issued by any competent tribunal for the apprehension of
petitioners, said apprehension appears to be illegal.

At any rate, even under the hypothesis that it was legal and continued to be so for six hours, this
time having expired seven days ago, the continued detention and confinement of petitioners is
clearly illegal, and not only illegal but criminal, involving an offense committed by public officers and
heavily punished by the Revised Penal Code.

Regarding the question as to legality of the arrest, counsel for respondents has advanced the
shocking theory that police officers may arrest any person just for questioning or investigation,
without any warrant of arrest.

The theory is absolutely unconstitutional and could have been entertained only under the "Kempei"
system implanted by the brutal Japanese army occupation. Such theory represents an ideology
incompatible with human dignity. Reason revolts against it.

Respondents are ordered, upon notice of the decision, to immediately release the two petitioners
and to report to this Court the time when the release shall have been effected.
TUASON, J., dissenting:

I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al., Off. Gaz., 1214.

RESOLUTION

August 27, 1948

FERIA, J.:

This is a motion for reconsideration of our decision which holds that the phrase "judicial authority"
used in the article 125 of the Revised Penal Code, to whom a person arrested without warrant shall
be delivered by the officer making the arrest within the period of six hours from the arrest, means a
competent court or judge, and the City Fiscal is not such a judicial authority.

We have already held, in the United States vs. Fortaleza, 12 Phil., 472,477-479, that the provisions
of the Provisional Law for the application of the provisions of the Spanish Penal Code in the
Philippines by Royal Decree of September 4, 1884, are in force of this Islands insofar as they have
not been repealed or amended by implication by the enactment of the body of laws put in force in
these Islands since the change from Spanish to American sovereignty. According to the ruling of this
court in said case, a person may be arrested without warrant in the cases specified in Rules 27 and
28 of said provisional law and section 37 of Act No. 183 (Charter of Manila). The provisions of said
Rules 27 and 28 are substantially the same of those contained in section 6 Rule 109 of the Rules of
Court which superseded them; and the provisions of section 37 of Act No. 183 above reffered to
have been incorporated in section 2463 of the Revised Administrative Code. Both section 6 of Rule
109, and the pertinent provisions of said section 2463 of the Revised Administrative Code are now
the laws in force on the subject.

Article 30 of said Provisional Law for the application of the Penal Law in the Philippines also
provides:

The executive authorities or the agents detaining a person shall release the same or else
turn him over to the judicial authorities within twenty four hours after the arrest if made in the
head town of the district, or within as brief a period as the distance and transportation
facilities permit.

And the next article 31 of the same law reads as follows:

Within twenty four hours after the person arrested has been surrendered to the competent
judge of Court of First Instance, the latter shall order the commitment or release of the
prisoner by warrant containing the grounds on which it is based (auto motivado).

If it is impossible to do so because of the complexity of the facts, the number of defendants

or any other serious cause, which must be made of record, the time of detention may be
 extended to three days. Upon the expiration of that period of time the judge shall order the
commitment or the release of the defendant. The warrant of commitment shall be ratified
after the defendant has been heard within the period of sixty two hours from the time the
defendant has been committed to prison.

Said Rule 30 has been modified by section 17, Rule 109, which provides that "Any person making
arrest for legal ground shall, without unnecessary delay and within the time prescribed in the
Revised Peal Code, take the person arrested to the proper court or judge for such action as they
may deem proper to take," and by article 125 of the Revised Penal Code already quoted.

But the provisions of Rule 31 above quoted are still in force because they may have not been
repealed, either expressly or by implication, by any law or the present Rules of Court, except the last
sentence, thereof which is no longer in force. The procedure of hearing the accused after he has
been committed to prison referred to in said last sentence, is a sort preliminary investigation by the
judge or justice of the peace according to the present procedure. Persons arrested or accused in the
City of Manila are not entitled to such investigation. In provinces the justice of the peace or judge
shall, according to section 2 of Act No. 194, "make the preliminary investigation of the charge as
speedily as may be consistent with the right and justice, but in any event he must make the
investigation within three days of the time the accused was brought before him, unless the accused
or complainant shall ask for delay in order that witnesses may be obtained, or for other good and
sufficient reason, in which event a continuance for a reasonable time may be allowed." This
provision of section 2 of Act No. 194 is still in force, because no law has been enacted amending or
repealing it. (Marcos vs. Cruz [May 13, 1939] 1st Supp., 40 Off. Gaz., 174, 182.) The Rules of Court
on Criminal Procedure do not undertake to dispose of all subjects of preliminary investigation, and
repeal all laws on the subject not incorporated therein; especially those that, like the said provisions
of section 2, Act No. 194, confer substantive rights upon defendants which can not be diminished,
increased or modified by the Rules of Court (section 13, Article VIII, of the Constitution).

In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law, article 204 of the
old Penal Code, from which article 125 of the Revised Penal Code was taken, and section 1 (3)
Article III of the Constitution, there can be no doubt that the judicial authority within the meaning of
article 125 of the Revised Penal Code must be a judge who has authority to issue a written warrant
of commitment or release containing the ground on which it is based (auto motivado). Because said
section 17 of Rule 109 expressly provides that the officer making the arrest without warrant shall,
within the time prescribed in the Revised Penal Code, take the person arrested to a court or
judge for such action as the latter may deem proper to take; Rule 31 expressly states that, within
twenty four hours or at most three days after the person arrested has been delivered to the judge of
Court of First Instance (and alsothe justice of the peace now), the latter shall order the commitment
or release of the prisoner by a warrant containing the ground upon which the commitment or release
is based (auto motivado); article 204 of the Penal Code (not incorporated in the Revised Penal
Code), penalize the judicial authority or judge who fails to comply with the provisions of said Rule 31;
and section 1(3) Article III of the Constitution provides that no warrant shall issue but upon probable
cause, to be determined by the judge after examination under oath or affidavit of the complainant
and witnesses he may produce," in order to safeguard "the right of the people to be secured in their
person ... against unreasonable seizure" or detention for a longer period than that fixed or
considered by law as reasonable (six hours according to section 125 of the Revised Penal Code).

It is obvious that the city fiscal is not a city judge, and has no power to issue order or commitment or
release by a written warrant containing the ground on which it is based. As a matter of fact the city
fiscal has never exercised such power since that office was created. In justice to the city fiscal, we
have to state that the latter did not and does not contend in his motion for reconsideration that it has
the power to issue such a warrant, as contended in the dissenting opinion.
To consider a city fiscal as a judicial authority within the meaning of article 125 of the Revised Penal
Code, would be to place a person arrested in provinces without warrant in a better position than
those arrested in the City of Manila. Because, as there is no law requiring the city fiscal to act or file
an information against such person within a limited period of time, after the arresting officer has
taken the prisoner to the city fiscal within six hours, the prisoner may be held under detention without
any warrant for days and weeks and possibly months until such time as the city fiscal may take
action, either by releasing the prisoner without filing any information, or filing an information with the
proper city court and obtain a warrant of commitment. While a person arrested outside of the City of
Manila has to be delivered by the arresting person or peace officer to the competent judge within six
hours after his arrest, and the latter shall have to investigate the charge and issue a warrant of
release or commitment of the prisoner within the period of twenty four hours or at most three days
prescribed in said article 31 of the Provisional Law.

It is obvious that the surrender or delivery to the judicial authority of a person arrested without
warrant by a peace officer, does not consist in a physical delivery, but in making an accusation or
charge or filing of an information against the person arrested with the corresponding court or judge,
whereby the latter acquires jurisdiction to issue an order of release or of commitment of the prisoner,
because the arresting officer can not transfer to the judge and the latter does not assume the
physical custody of the person arrested. And in the City of Manila it does consist in delivering
physically the body of the prisoner to the city fiscal, for the latter will not assume the responsibility of
being the custodian of the prisoner; nor in making or lodging a complaint against him with the said
fiscal, because the latter has no power to order the commitment or release of the prisoner by a
warrant containing the ground on which it is based (auto motivado). Such delivery 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 so
warrants. Upon the filing of such information will the prisoner be deemed deliver to a judicial
authority in the City of Manila within the meaning of article 125 of the Revised Penal Code?

The city court or judge need not make an investigation of the facts alleged in the information, which
the judge or justices of the peace in provinces have to make before issuing the proper warrant,
because the law vest the power in the city fiscal, but said city judge shall determine only the legal
question whether said facts constitute an offense or violation of ordinances, and issue a warrant of
commitment if they do, or of release if they do not.

As a peace officer can not deliver directly the person arrested to the city courts, he shall deliver him
to said court through the city fiscal, and if the latter does not take the prisoner in time to the latter so
that the proper investigation may be made and information filed within six hours, he has to release
the prisoner in order to avoid criminal liabilty for violation of article 125 of the Revised Penal Code.
The city fiscal is not an agent of the arresting officer, but as prosecuting officer, he will be recreant to
his duty if he does not do his best to make the investigation and file the corresponding information in
time against the person arrested without warrant, in order to effect the delivery of the prisoner to the
city courts within the period of six hours prescribed by law, and thus prevent his being released by
the officer making the arrest. If the city fiscal does not file the information within said period of time
and the arresting officer continues holding the prisoner beyond the six-hour period, the fiscal will not
be responsible for violation of said article 125, because he is not the one who arrested and illegally
detained the person arrested, unless he has ordered or induced the arresting officer to hold and not
release the prisoner after the expiration of said period.

Section 2640 of the Revised Administrative Code which specifies the powers and duties of chief of
police of the City of Manila, authorizes the latter "to take good and sufficient bail for the appearance
before the city court of any person arrested for violation of any city ordinance: Provided, however,
That he shall not exercise this power in cases of violation of any penal law except when the fiscal of
the city shall so recommend and fix the bail to be required of the person arrested." These provisions
do not authorize, either expressly or by implication, the city fiscal to order the detention of the
prisoner if bond is not given, not only because they refer to the powers of the chief of police of
Manila and not of the city fiscal, but because the only incidental authority granted to the latter is to
recommend the granting of the bail to be required of the person arrested for violation of any penal
law in order that the chief of police may release the latter on bail. If no bail is given by the person
arrested, neither the chief of police, who is only authorized to release on bail, has power to detain
the person arrested for more than six hours; nor the city fiscal, who is only empowered to fix and
recommend the bail to the chief of police, has authority to order the detention of persons arrested for
violation of a penal law.

The above-quoted provisions of section 2640 of the Revised Administrative Code refers evidently to
persons arrested without warrant, for accused arrested by virtue of a warrant issued by the courts
may be released on bail only by order of the court or judge that issued the warrant and has exclusive
jurisdiction or control over the person arrested. The purpose of the law in empowering the chief of
police of Manila to release the prisoner if he sets up a bail, is to relieve the officer making the arrest
from the necessity of taking the prisoner to the city fiscal, and the latter from filing an information with
the proper courts within the period of time prescribed by law.

The dissenting opinion calls a general principle of law an excerpt of the Corpus Juris Secundum
quoted therein which says that "the officer however need not necessarily have personal knowledge
of the facts constituting the offense in the sense of having seen or witnessed the offense himself, but
he may if there are no circumstances known to him by which materially impeach his information,
acquire his knowledge from information imparted to him by reliable and credible third persons or by
the information together with other suspicious circumstances" (6 C.J.S., 599, 600), and after the
quotation adds: "This is a common law rule implanted in the Philippines along with its present form of
government, a rule which has been cited and applied by this Court in a number of cases (U. S. vs.
Santos, 36 Phil., 853; U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil., 516).

The above-quoted excerpt is not a general principle of law or a common law rule implanted in the
Philippines. It is a summary of the ruling of several State courts based on statutory exceptions of the
general rule. "It is the general rule, although there are statutory exceptions and variations, that a
peace officer has no right to make an arrest without a warrant, upon a mere information of a third
person" (5 C.J., p. 404), because "statutes sometime authorize peace officer to make arrest upon
information" (4 Am. Jur., p. 17). In none of the cases cited in the dissenting opinion has this Court
quoted and applied it. In U.S. vs. Fortaleza, 12 Phil., 472, this Court, after quoting Rules 27 and 28
of the "Provisional Law for the Application of the Penal Law" and section 37, Act No. 183, as the law
in force in force in these Islands providing for cases in which a person may be arrested without a
warrant, said:

These provisions quite clearly set out the powers usually conferred by American and English
law upon "peace officers" including "constables," in making arrests without warrants; and
since similar powers are clearly included in the powers conferred upon "agents of authority"
in the above cited articles of the "Provisional Law," there can be no doubt that the
Commission, in imposing the duty of maintaining order and preserving and protecting life and
property within their respective barrios upon municipal councilors and their lieutenants of
barrios, conferred upon such officials authority to make arrests without warrant not less
extensive than that conferred upon peace officers in Manila in the above-cited provisions of
the Manila Charter. (United States vs. Vallejo, No. 4367, decided by this court on September
3, 1908; also United States vs. Burgueta, 10 Phil., 188.) (Emphasis ours.)
The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the last paragraph of the
dissenting opinion, does not contain anything about the implantation in these Islands of the so-called
common law rule. In the case of U.S. vs. Battallones (not Ballesteros) 23 Phil., 46, cited also therein,
this Court, following the ruling in U.S. vs. Fortaleza, said:

In a former case we held that officials in these Islands, who, "by direct provisions of law or by
appointment of competent authority are charged with the maintenance of public order and
the protection and security of life and property," have authority to make arrests without
warrant substantially similar to the authority generally conferred upon "peace officers" in the
United States, and more especially that class of `peace officers' known to American and
English law as constables; and that "the provisions of section 37 of Act No. 183" (the Charter
of Manila) "quite clearly set forth the powers usually conferred by American and English law
upon "peace officers" including "constables" in making arrests without warrants," and provide
that they "may pursue and arrest without warrant, any person found in suspicious places or
under suspicious circumstances, reasonably tending to show that such person has
committed or is about to commit any crime or breach of the peace; may arrest, or cause to
be arrested without warrant, any offender, when the offense is committed in the presence of
a peace officer or within his view". (U.S. vs. Fortaleza, 12, Phil., 472, 479.)

And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has reiterated the ruling in the
previous cases and held:

The powers of peace officers in the Philippines, generally stated, are the same as those
conferred upon constables under the Anglo-American Common Law. The extent of their
authority to make arrests without warrant and the limitations thereon, as held by the
Supreme Court, are as stated in the language of the Legislature in the Charter of the City of
Manila. (U.S. vs. Fortaleza [1909], 12 Phil., 472). The Administrative Code (section 2204,
edition of 1916; section 2258, edition of 1917) enjoins municipal policemen to "exercise
vigilance in the prevention of public offenses".

The provisions above quoted of section 37 of Act No. 183 have been incorporated in section 2463 of
the Revised Administrative Code and those of Rules 27 and 28 were substantially incorporated in
section 6, Rule 109 of the Rules of Court. Section 2463 of the Revised Administrative Code reads as
follows:

SEC. 2463. Police and other officers Their powers and duties. The mayor, the chief
and assistant chief of police, the chief of the secret service, and all officers and members of
the city police and detective force shall be peace officers. Such peace officers are authorized
... to pursue and arrest, without warrant, any person found in suspicious places or under
suspicious circumstances reasonably tending to show that such person has committed, or is
about to commit, any crime or breach of the peace; to arrest or cause to be arrested, without
warrant, any offender when the offense is committed in the presence of a peace officer or
within his view;

And section 6 of Rule 109 provides:

SEC. 6. Arrest without warrant When lawful. A peace officer or a private person may,
without a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to
commit an offense in his presence;
 (b) When an offense has in fact been committed, and he has reasonable ground to believe
that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred from one confinement to another.

These are the only provisions of law in force these Islands which enumerate the cases in which a
peace officer may arrest a person without warrant, and the so called common law relating to other
cases of arrest without warrant cited in the dissenting opinion has no application in this jurisdiction.
Therefore, all the considerations set forth in the said opinion about the disastrous consequences
which this Court's interpretation of article 125 of the Revised Penal Code will bring to a law
enforcement, because "the entire six hours might be consumed by the police in their investigation
alone," or that "even if the city fiscal be given the chance to start his assigned task at the beginning
of the six hours period, this time can not insure proper and just investigation in complicated cases
and in cases where the persons arrested are numerous and witnesses are not at hand to testify,"
since "the police is not authorized to round up the witnesses and take them along with the prisoner
to the city fiscal," are without any foundation. Because they are premised on the wrong assumption
that, under the laws in force in our jurisdiction, a peace officer need not have personal knowledge
but may arrest a person without a warrant upon mere information from other person. "The right to
make arrests without a warrant is usually regulated by express statute, and except as authorized by
such statutes, an arrest without a warrant is illegal." (5 C.J., pp. 395, 396.) And statutory construction
extending the right to make arrest without a warrant beyond the cases provided by law is derogatory
of the right of the people to personal liberty (4 Am. Jur., p. 17).

The investigation which the city fiscal has to make before filing the corresponding information in
cases of persons arrested without a warrant, does not require so much time as that made upon a
complaint of the offended parties for the purpose of securing a warrant of arrest of the accused. In all
cases above enumerated in which the law authorizes a peace officer to arrest without warrant, the
officer making the arrest must have personal knowledge that the person arrested has committed, is
actually committing, or is about to commit an offense in his presence or within his view, or of the
time, place or circumstances which reasonably tend to show that such person has committed or is
about to commit any crime or breach of the peace. And the testimony of such officer on the
commission of the offense in his presence or within his view by the person arrested, or on the facts
and circumstances that tend reasonably to show that said person has committed or is about to
commit an offense, would be sufficient evidence or basis for the city fiscal to file an information
without prejudice to his presenting of their evidence or witness, if any, during the trial to insure the
conviction of the defendant. If the city fiscal does not believe the testimony of the officer making the
arrest or consider it sufficient, or has any doubt as to the probability of the prisoner having committed
the offense charged, and is not ready to file an information against him on the strength of the
testimony or evidence presented, there would be no legal reason or ground for him to wait until
further evidence may be secured before dismissing the case against the prisoner, or detaining the
person arrested without warrant without violating the precept of article 125 of the Revised Penal
Code.

After the release of the prisoner, the city fiscal may make or continue the investigation and file
afterwards the proper information against him with the corresponding court, if the result of the
investigation so warrants, in order to secure a warrant of arrest of the same. Of course, as we have
said in our decision for the purpose of determining the criminal liability of a peace officer detaining a
person for a longer period of time than the six hours prescribed by article 125 of the Revised Penal
Code, "the means of communication as well as the hour of arrest and other circumstances such as
the time of surrender and the material possibility for the fiscal to make the investigation and file in
time the necessary information, must be taken into consideration." The period originally fixed by our
Penal Code was twenty four (24) hours, and if the city fiscal believes that the period now prescribed
by article 125 of the Revised Penal Code is short, and that the law must be amended so as to
extend it, it would be proper for the interested parties to take the case to Congress, since it can not
be done by judicial legislation.

Motion for reconsideration is denied.

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

PERFECTO, J.:

We agree with the above resolution except that which may be at variance with our concurring
opinion in this case and with our written opinion in the case of Lino vs. Fugoso, L-1159, 43 Off. Gaz.,
1214.

BRIONES, M., concurring:

Estoy enteramente conforme con la resolucion. En la opinion concurrente que dicte en el asunto de
Lino contra Fuguso y otros (43 off. Gaz., 1235, 1244) donde se discutio por primera vea el
importante punto legal debatido en el presente asunto, dije lo siguiente y lo reafirmo en esta
ocasion, saber:

Sin discutir la responsabilidad de la Fiscalia por la demora si esta se puede o no justificar

administrativamente es cuestion que no nos compete considerar ni resolver vamos a
limitarnos a comentar y discutir la fase juridica legal. Esta en orden naturalmente el hacer la
siguiente pregunta: es correcta, es acertada la asercionde que el "Promotor Fiscal de Manila
es un funcionario judicial (judicial officer)," que, por tanto, la entrega al mismo de la persona
de undetenido dentro del periodo de 6 horas equivale a la entrega a las autoridades
judiciales correspondentes (proper judicial authorities) de que habla el ariticulo 125 del
codigo penal revisado? Creemos que no: no por su letra ni por su espiritu puede aplicarse
por extension la fraseologia de ese articulo al Fiscal de la Ciudad de Manila o a cualquier
otro Fiscal; ese articulo no puede referirse mas que a un tribunal, a u juzgado, se municipal,
sea de primera instancia. Asi que story de perfecto acuerdo con la ponencia cuando
positivamente sienta la doctrina de que "si bien un arresto puede hacerse sin orden cuando
hay motivos razonalbes apra ello (regla 109, articulo 6, reglamento de los tribunales), el
detenido no puede ser recluido fuera del periodo prescrito por la ley, a menos que una orden
de arresto se obtenga antes de un tribunal competente" (veanse las autoridades que se
citan), y que "en el presente caso el Fiscal de la Ciudad no tenia autoridad para expedir
ordenes de arresto y carecia de facultad para convalidar tal detencion ilegal con solo
presentar las querellas, o con una orden de su propia cuenta, ora tacita, ora expresa"
(veanse asimismo las authoridades que se citan).

De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la ciudad despues del
periodo de 6 horas prescrito por la ley los papeles sobre un detenido arestado sin previa
orden al efecto, no por ello se cura la ilegalidad del arresto y detencion, sino que dicha
 ilegalidad continua y persiste hasta que el Fiscal presenta la querella y obtiene una orden de
arresto del tribunal competente, o que, tratandose de delito, mediante la prestacion de una
fianza cuya cuantia se fijare y recommendare por dicho Fiscal, la policia soltare al detenido,
a tenor de lo previsto en el articulo 2460 del codigo administrativo.

Puede ocurrir, sin embargo, que la policia entregue los papeles a la Fiscalia de la ciudad
dentro del periodo de 6 horas, pero que la Fiscalia no solo deja pasar dicho periodo, sin que
transcurren dias, hasta semanas sin actuar sobre el caso en uno u otro sentido. La cuestion
en orden naturalmente es la siguiente: es legal o ilegal la detencion del arrestado en tal
caso? En otras palabras: queda suspenidod el periodo de 6 horas durante el tiempo que el
Fiscal de la Ciudad tarda en actuar sobre el caso? La contestacion tiene queser
necesariamente negativa. La rigidez., la inflexibilidad del periodo de 6 horas reza no solo
para la policia, sinohast para cualquier otra agencia o ramo oficial, sin excluir a la Fiscalia de
la ciudad de Manila. Si por cualquier motivo la Fiscalia dejare de actuar dentro de dicho
periodo, el deber de la policia o del que tenga la custodia del detenido es soltarle, quiera o
no quiera el Fiscal, lo recomiende o no lo recomiende. De otra manera, la restriccion que
estatuye la ley a favor de los detenidos sin previa orden de arresto restriccion que
implementa las garantias de la libertad establecidas en la Constitucion resultaria un mito.
La filosofia de la ley es, a saber: solamente se verifica un arresto sin previa orden cuando
hay motivos razonalbes para ello, v. gr., cuando un individuo es cogido in fraganti
cometiendo un delito. La ley presupone, por tanto, que el Estado tiene a mano todos los
elementos necesarios para decider que accion ha de tomar dentro del periodo de 6 horas,
ya entregando la persona del detenido a las autoridades judicales correspondientes
mediante la querella procedente, a tenor del articulo 125 del Codigo Penal Revisado: ya
poniendole en libertad provisional bajo una fianza razonable, de acuerdo con el citado
articulo 2460 del Codigo Administrativo; o ya poniendole compoletamente en la calle por
falta de meritos en el caso. Si ninguna de estas cosas puede hacer el Estado en 6 horas no
puede ser mas que por dos motivos: o poor que se quiere cometer una arbitrariedad, o la
maquinaria oficial se halla en un deplorable estado de confusion, indeptitud of impotencia.

Se arguye con enfasis que bajo esta interpretacion la prosecucion del crimen sufriria un
serio quebranto, sobre todo en la Ciudad de Manila; que materialmente la Fiscalia no puede
actuar adecuadamente sobre algunos casos en el plazo percentorio de 6 horas. Si esto es
verdad el remedio no es infringer la ley como cosa inevitable, rutinaria; el remedio seria o
recabar de la Legislatura que se reforme la ley en la forma que se estime conveniente, o
implementar ya perfeccionar la maquinaria de la prosecucion criminal, colocandola a la
altura de las circunstancias. No hay nada mas anarquico, mas subversivo y fatal para el
principio de la autoridad y del buen gobierno que el tener leyes que no se cumplen, leyes
que se infringen hasta por los llamados a ponerlas en vigor. "To be or not to be, that is the
question." O existe la ley y hay que cumplirla; o si la ley es mala o impracticable, hay que
reformarla o derogarla. Lo que no se debe permitir es el disolvente espectaculo de la diaria
inobservancia de la ley.

Se me ocurre ahora aadir otras observaciones en refuerzo de la arriba transcritas. Creo que ni
siquiera es necesario enmendar la ley en el sentido de alargar el periodo de 6 horas provisto en el
articulo 125 del Codigo Penal Revisado. Creo que con un poco mas de esfuerzo y buena voluntad la
presente ley se podria cumplir en la Ciudad de Manila. La Fiscalia de la Ciudad podria, por ejemplo,
establecer turnos semanales o mensuales, segun como se estime conveniente, destinando fiscales
que se hagan cargo exclusivamente de los casos de individuos detenidos sin previa orden de
arresto, para los efectos de presentar la correspondiente querella contra ellos, o de soltarlos si se
viere que no existen meritos suficientes para la prosecucion, sin perjuicio desde luego de ulteriores
procedi mientos. Si para realizar satisfactoriamente este trabajo fuese necesario aumentar el
personal de la Fiscalia, yo no creo que el gobierno escatimaria el dinero para una atencion tan
importante.

Esincreible que dentro de 6 horas si hay voluntad de trabajar y sobre todo de hacer buena y
efectiva la ley la Fiscalia no pueda hacr su composicion de lugar en tales casos, bien para
proseguir, bien para no proseguir, de finitivamente o en el entretanto. Hay que tener en cuenta que
se trata de casos en que el individuo es detenido, ora porque ha sido sorprendido in
fraganti cometiendo una infraccion o un delito, ora poroque se le ha cogido " en lugares
sospechosos o bajo cirunstancias sospechosas, que tiendan razonablemente a demostrar que el
mismo ha cometido o esta para cometer cualquier crimen o atentado contra el orden y la paz" (E.
U. contra fortaleza, 12 Jur. 486). Que es lo que neceista entonces la Fiscalia en tales casos? No
esta alli el testimonio del policia, constabulario o agente del orden aprehensor? De modo que la
cuestion, en ultimo resultado, es que la Fiscalia tenga o no fe en la integridd y verracidad del agente
de la ley. Si la tiene que motivo hay para no formular inmediatamente la querella y obtener asi del
juzgado la correspondiente orden de arresto? Y si no la tiene que razon hay para pisotear la
libertad individual reteniendo la causa sin accion mas alla de las 6 horas y causando asi una
inecesaria vejacion al ciudadano?

La cuestion se puede simplificar mas todavia. Todo se reduce, en ultimo termino, a que la Fiscalia
pueda contar con la ayda de una policia eficiente, integra y honrada sobre todo, que persiga el
crimen si cuartel, pero que tenga el maximo respeto a los derechos del ciudadano. Si la Fiscalia
puede tener un modus vivendi con una policcia de semejante tipo y de tales quilates, no hay miedo
de que una rigida observancia del requerimiento legal de 6 horas facilitie la inmunidad de
los tulisanes, bandidos, gangsters y criminales del bajo mundo, y se ponga en grave peligro la
eficaz prosecucion del crimen y la seguridad y sosiego del pueblo. Dentro de las 6 horas hay tiempo
mas que suficiente para meter en cintura a toda la canalla ... pero por Dios que no se violen ni
pisoteen las garantias consitucionales por miedo a los gansters!

Desde luego que se debe dar cierto margen de viabilidad a la ley. Por ejemplo, si se verifica una
detencion sin previa orden de arresto a medianoche, creo que la ley estaria cumplida si en las
primeras horas de la maana siguiente se tomara enseguida accion, aungque ello rebassara un
poquito el periodo de 6 horas.

Se deniega la mocion de reconsideracion.

TUASON, J., dissenting:

I vote to grant the motion for reconsideration.

In my dissent from the decision of this Court I contended myself with citing my dissenting opinion
in Lino vs. Fugoso, L-1197, 43 Off. Gaz., 1214, 1246, as grounds for my disagreement. As the
present decision has gone farther than that decision and contains new statements and conclusions, I
deem it convenient to enlarge on my dissent.

The term "judicial officers" has been defined to be, in its popular sense, officers of a court (Hitt vs.
State, Miss. 181, So. 331) and in its strict sense, "judges and justices of all courts and all persons
exercising judicial powers by virtue of their office." (Settle vs. Van Evrea, 49 N.Y., 280.) The city
fiscal is a judicial officer in both senses. In the popular or larger sense, he is a judicial officer
because he is a part of the legal machinery created for the administration of justice. A prosecuting
attorney, charged with the administration of justice and invested with important discretionary power
in a motion for a nolle prosequi, is a judicial officer. (State ex rel. Freed vs. Circuit Court of Martin
Country, Ind., 14 N.E. 2d 910; State vs. Ellis, 112 N.E., 98, 100; 184 Ind., 307.)

In the strict legal sense, the city fiscal is a judicial officer when making preliminary examination
because he performs the function of a justice of the peace assuming, as the majority seem to
assume, that the conduct of preliminary examination is a judicial function. By express provision of
section 2465 of the Revised Administrative Code, the city fiscal "shall cause to be investigated all
charges of crimes, misdemeanors, and violations of ordinances, and have the necessary information
or complaints prepared or made against the persons accused." In addition, section 2, Rule 108, of
the Rules of Court states that "every justice of the peace, municipal judge or city fiscal shall have
jurisdiction to conduct preliminary investigation of all offenses alleged to have been committed,
within his municipality or city, cognizable by the Court of First Instance."

The city fiscal is not any the less a judicial officer simply because he can not issue warrant of arrest.
The power to issue warrant of arrest is not essential ingredient of a judicial office. This is especially
so when, as in cases like the present, the accused is already under arrest when the city fiscal
intervenes and there is no need of issuing an order of arrest. As to power to commit a detained
person to prison, if that be necessary, the majority are not exactly right when they affirm that the city
fiscal is not clothed with it. I shall come to this later.

However that may be, the city fiscal is a "judicial authority" within the contemplation of article 125 of
the Revised Penal Code. This is the inevitable result from the fact that in the City of Manila, the city
fiscal under the existing scheme of the government is the only officer to whom the person arrested
without warrant may be presented. The majority opinion admits that the municipal court and the
Court of First Instance of Manila "do not make or conduct a preliminary investigation proper," and
criminal complaints are not filed with them but with the city fiscal. Reasoning from another angle, we
reach the same conclusion. We are to presume that in using the generic term "judicial
authorities" and in plural instead of more specific word "justice," "judge," or "court", the
lawmaker intended to include in the operation of the article under consideration all officers who are
named to receive the prisoner from the arresting officer. We have to adopt this construction if we are
to give effect to the law and the rule of court I have cited, and if we are to avoid what I might call,
without meaning offense, an absurdity.

Under no canon of statutory construction is there justification for this Court's opinion that the police
and the city fiscal have to share the six hours fixed in article 125 of the Revised Penal Code. The
language, the nature and the object of this provision unerringly point to the theory that the six hours
mentioned in the Revised Penal Code are meant exclusively for the police officer who made the
arrest. I can discern absolutely no indication of any intention to have the city fiscal squeeze in his
action within this brief period, a period which, in many cases, is not even sufficient for the police.
Read separately or in conjunction with the entire criminal procedure, article 125 does not furnish the
slightest indication of legislative intent to place the city fiscal and the police under the same
category. Article 125 of the Revised Penal Code was devised for one purpose; section 2465 of the
Revised Administrative Code and section 2, Rule 108, of the Rules of Court for another. Article 125
is a penal provision designed to prevent and punish police abuses for which the police are noted.
The investigation by the city fiscal is strictly and essentially procedural. It is an integral part of the
procedure for bringing the case to trial.

Little reflection will disclose the disastrous consequences which this Court's interpretation of article
125 of the Revised Penal Code will bring to law enforcement. It nullifies the role of the fiscal in the
administration of criminal law. For sheer lack of time, the release of the prisoner arrested without
warrant will, in a great number of cases, be inevitable, unless the city fiscal files charges without
sufficient and adequate investigation. The alternative will be for the city fiscal to be on a 24-hour
watch lest in his sleep the time for him to act might slip by.

But this is only a poor alternative. Regardless of any vigilance on his part the opportunity for the city
fiscal to make the required investigation cannot always be assured. The law gives the police
absolute power to detain a prisoner for six hours without incurring penal liability. There is no law
which obliges the police to take the prisoner to the city fiscal before the expiration of six hours from
the time of arrest. There can be cases where the entire six hours might be consumed by the police in
their investigation alone, or just in the chasing, collection and transportation to the police station of
the law breakers. This can happen in tumultuous and other mob offenses in which many people are
involved and there is necessity of screening the guilty ones.

Supposing then that the police should deliver the prisoner or prisoners to the city fiscal at the last
minute of the six hours through the negligence or by force of circumstances, what time is there for
this functionary to comply with his duty? And even if the city fiscal be given the chance to start his
assigned task at the beginning of the six hour period, can this time insure proper and just
investigation in complicated cases and in cases where the persons arrested are numerous and
witnesses are not on hand to testify? It is well to remember that the police are not authorized to
round up witnesses and take them along with the prisoners to the city fiscal.

In the light of these consequences I can not imagine that the meaning which this Court attaches to
article 125 of the Revised Penal Code so much as entered the thought of the legislature. No sound-
minded legislature could have intended to create such situation, which is easy to perceive unless we
assume that the legislative purpose was to tie up the hands of the law and give lawlessness full
sway; unless the legislature wanted to coddle and pamper lawless elements to a calamitous
extreme. When the Court says that the prisoner, after being released at the end of six hours from the
time of his arrest may be rearrested should the city fiscal find sufficient evidence and prefer charges
against him, it takes for granted that underworld characters and hardened criminals are honorable
men who would keep themselves ready and handy for a second arrest.

The Court says:

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

What is that "proper process" referred to in the above quoted portion of the decision? Whatever is
meant by "proper process," we should note that there is no fundamental difference between the
proceeding before a justice of the peace and the procedure followed by the city fiscal. There is
nothing important the justice of the peace may do in the interest of the accused in the cases triable
before the Court of First Instance which the city fiscal may not do. If the city fiscal can not issue an
order of arrest, the justice of the peace himself does not do so to give the detention the stamp of
legality. At least, I am aware of no law which tells him to take this step, and I can see no material
advantage which an accused could derive from this ceremony. All the justice of the peace does
which matters to the accused is admit him to bail, if the crime be bailable, and proceed to an
investigation.

But the city fiscal does just that; and if the necessary to order the commitment of the prisoner
pending ascertainment of his guilt, the city fiscal no less than the justice of the peace or judge of first
instance has the authority also, as I propose to show later. In actual practice, a person arrested
without warrant in a regular municipality frequently suffers greater injustice and is subject to, and
frequently goes through, greater hardships than his counterpart in the City of Manila. We are witness
to the common spectacle of cases being dismissed on motion of the provincial fiscal for want of
sufficient evidence after the prisoner had been bound by the justice of the peace over to the Court of
First Instance for trial and after he had languished in jail for months or years. Prisoner's detention in
that case is not considered illegal.

This anomaly seldom takes place in cities where the preliminary investigation is entrusted to the city
fiscal. Rarely in the City of Manila is a case dropped for insufficiency of evidence after it has been
determined in a preliminary investigation that the prisoner should be held for trial. On the whole, the
method by which the preliminary investigation is conducted by the prosecuting attorney is more
conducive to efficiency, minimizes or eliminates conflicts of opinion in the existence of probable
cause, and better insures prompt dispatch of criminal cases to the lasting benefit of the prisoner.
Only physical impossibility, as I understand it, is in the way for the adoption of this method
throughout the country.

It is a mistake, in my humble judgment, to confuse a prisoner's detention during the six-hour period
fixed in article 125 of the Revised Penal Code and his continued detention after he is turned over to
the city fiscal. As I have said, article 125 regulates the time within which a police officer may hold the
prisoner under his responsibilty, and it applies to the police alone. It will hardly be contended that
this article, or any other law, or the constitution limits the period within which a prisoner may be
detained after he is delivered to the justice of the peace. If that is so, and since the city fiscal acts in
lieu of a justice of the peace, there is no sound basis, legal or practical, for denying to the former the
same time and the same freedom of action that is enjoyed by the latter.

By the same token, there is no sound reason for denying to the proceeding by the city fiscal the
same attributes which adhere to the proceeding before the justice of the peace. After the arresting
officer produced the prisoner before the city fiscal, the law takes its course in the same manner that
it does when the examining officer is the justice of the peace or judge of first instance. From that
time the arresting officer ceases to have any control over the prisoner save to keep him in custody
subject to the orders of the city fiscal. The police step out and the law steps in and extends to the
prisoner the mantle of protection against inquisitory examination by the police. From that time on he
enjoys the rights granted by law to all accused persons the right to give bail and the right to testify
freely uninfluenced by any fear of violence or other forms of maltreatment. The danger envisioned by
article 125 of the Revised Penal Code is past.

The proceeding before the city fiscal does not lose its character of due process of law by its being
conducted by the city fiscal instead of a judge. For one thing, preliminary investigation is not a trial. It
is a constitutional right. It is purely a matter of statutory regulation. (Potenciana Dequito vs. Hugo O.
Arellano et al., G.R. No. L-1336; 32 C.J.S., 456.) A judicial proceeding which lies within the power of
the legislature to provide or withhold without infringing the fundamental law may be placed in the
hands of any officer other than a judge.

The jurisdiction to make a preliminary examination or investigation is not even considered judicial.
Judges who perform this function do not do so as judicial officers. Municipal executives here and in
the United States are conferred this power. "The power to examine and to commit persons charged
with crime is not judicial, but is one of the duties of the conservators of the peace, and it may be, and
usually is, vested in persons other than courts, as, for instance, justices of the peace or police
magistrates, or persons exercising jurisdiction analogous to that exercised by justices of the peace,
or who are ex officio justices of the peace, such as mayors, notaries public, or court commissioners.
Power to hold preliminary examinations may be exercised by the United States commissioners, and
United States district judges who, while making the preliminary examination, exercise the powers of
commissioners only." (16 C.J., 319-320.)

There is no basis for the fear that "the city fiscal may not, after due investigation, find sufficient
ground for filing an information or prosecuting the person arrested and release him, after the latter
had been illegally detained for days or weeks without any process issued by a court or judge." This
statement overlooks the consistent and general practice heretofore followed with clear, express
statutory sanction. Section 2640 of the Revised Administrative Code authorizes the chief of police of
the City of Manila "to take good and sufficient bail for the appearance before the city court of any
person arrested for violation of any city ordinance," while in cases of violation of any penal law,
according to the same article, the fiscal of the city may, and does, recommend and fix the bail to be
required of the person arrested. Power to fix bail necessarily implies power to recommend or order
the detention of the prisoner if bond is not given. This in its working is no more nor less than the
power to commit an accused to prison pending investigation of this case, power which the majority
erroneously say is not possessed by the city fiscal.

The constitutional and statutory provisions and rules cited by the majority are of general application
which are good only in the absence of specific enactments. The controlling provisions in the case at
bar are sections 2460 and 2465 of the Revised Administrative Code and section 2, Rule 108, of the
Rules of Court.

The decision further says:

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

I do not think the foregoing paragraph is relevant to the instant case. We are not dealing with the
authority of a police officer to make arrest without warrant. There is no question raised against the
legality of the petitioners' arrest. Our problem concerns the time in which the city fiscal may make his
investigation and the scope of his power.

Assuming the above-quoted statement to be pertinent to the issues, the same can not, in my humble
view, pass unchallenged. Under certain, well-defined circumstances, an officer may and constantly
does make arrests without a court order, with or without complaint. An officer in good faith may
arrest without warrant when he believes that a person is guilty of a crime, and his belief rests on
such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to
believe likewise. (6 C.J.S., 596.) This practice is not derived from any express authority but on the
necessity of catching law violators before they disappear and hide. I have not come across any law
naming specific offenses for committing which the offenders shall be arrested without court orders.

It is also a general principle of law that an officer need not necessarily have personal knowledge of
the facts constituting the offense himself, in the sense of having seen or witness the offense himself,
but he may, if there are no circumstances known to him which materially impeach his information,
acquire his knowledge from information imparted to him reliable and credible third persons, or by
information together with other suspicious circumstances. (Id., pp. 599, 600.) This principle ought to
serve as a qualification to the ruling laid down by this Court, that "a peace officer has no power to
arrest a person without a warrant upon complaint of the offended party or any other person." Under
the rule I have quoted, a police officer certainly may arrest a person pointed to him as having
committed a crime provided that the information or complaint comes from a reliable source and
under circumstances as to make an ordinary reasonable man to believe it to be well-founded. When
the victim of a robbery or aggression, for example, should subsequently spot the criminal and
request an officer to arrest him, the officer would not have to seek or wait for a warrant of arrest
before detaining the man, provided again that there was good ground to believe the truth of the
accusation.

This is a common law rule implanted in the Philippines along with its present form of government, a
rule which has been cited and applied by this Court in a number of cases. (U.S. vs. Santos, 35 Phil.,
853; U.S. vs. Batallones, 23 Phil., 46; U.S. vs. Samonte, 16 Phil., 516.)

Padilla, J., concurs.

SUPPLEMENTARY

TUASON, J., dissenting:

When I filed my dissent from the decision of the Court on the occasion of the denial of the motion for
reconsideration, it was my understanding that there was going to be only a minute resolution. I make
this remark not as a complaint but as my explanation for writing my dissent in advance of the
reasoned resolution. Even then I would contend myself with resting my dissent on what I have
already stated did the resolution contain new propositions to be answered and disclose
misunderstanding of some of many statements to be cleared. As this is in the nature and reply,
topics will be treated without regard to continuity of thought.

The resolution says that article 30 of the Provisional Law for the Application of the Penal Code in the
Philippines has been repealed by section 17 of Rule 109, but that section 31 is still in force except
the last sentence. And so, according to the resolution, is section 2 of Act No. 194.

Without discussing the materiality of those laws, I disagree that they are still in effect. Like article 30,
article 31 of the Provisional Law and section 2 of Act No. 194 deal with procedure in justice of the
peace courts in general covered by the new Rules of Court. The Rules of Court, in the words of their
introductory section, concern "pleading, practice and procedure in all courts of the Philippines, and
the admission to practice law therein." These Rules are complete revision and a complete re-
enactment of the entire field of procedure, and there is every reason to believe that they were
intended to replace, with some exceptions, all previous laws on the subject, especially Spanish laws
which had long been out of harmony with the new mode of pleading and practice. If the last
sentence of article 31 is repealed, as the resolution says, I see no valid ground for not holding the
other parts of that article repealed so. "Where a later act covers the whole subject of earlier acts,
embraces new provisions, and plainly shows that it was intended, not only a substitute for the earlier
acts, but to cover the whole subject then considered by the legislature, and to prescribe the only
rules in respect thereto, it operates as a repeal of all former statutes relating to subject matter. The
rule applies not only where the former acts are inconsistent or in conflict with the new act, but also
even where the former acts are not necessarily repugnant in express terms, or in all respects, to the
new act." (59 C.J., 919-920.) "While, as a general rule, implied repeal of a former statute by a later
act is not favored, yet `if the later act covers the whole subject of the earlier act and is clearly
intended as a substitute, it will operate similarly as a repeal of the earlier'." Posadas vs. National City
Bank of New York, 296 U.S., 497; 80 Law ed., 351.)

As the Rules of Court took effect on July 1, 1940, the case of Marcos vs. Cruz, decided on May 30,
1939, and cited in the resolution, is no authority for the opinion that no law has been enacted
amending or repealing section 2 of Act No. 192.

But this rule of implied repeal holds good only as regards laws of general application. Another well
known rule of the statutory construction tells us that preliminary investigations in Manila and other
chartered cities are to be excluded from the operation of the Rules of Court. Such investigations are
provided for the special enactments which, because of their special nature and limited application,
must be excepted from and prevail over the general provisions. "When the provisions of a general
law, applicable to the entire state, are repugnant to the provisions of a previously enacted special
law, applicable in a particular locality only, the passage of such general law does dot operate to
repeal the special law, either in whole or in part, unless such appeal is provided for by express
words, or arises by necessary implication. An intention to repeal local acts generally is not
intolerable from the fact that the general acts specifically excludes one locality from its operation."
(59 C. J. . 934.) There is no apparent intention in the Rules of Court to repeal the laws under which
preliminary investigations in Manila have to be conducted by the city fiscal. The contrary contention
is evidenced by section 2 of the rule 108, which provides that "Every justice of the peace, municipal
judge or city fiscal shall have jurisdiction to conduct preliminary investigation of all offenses alleged
to have been committed within his municipality or city, cognizable y the Court of First Instance,"
(Espiritu vs. De La Rosa [July 31, 1947], L-1156, 45 Off. Gaz., 196; Hashim vs. Boncan [Nov. 22,
1941], 40 Off. Gaz., 13th Supp., p. 13.) In the first of these cases, Mr. Justice Padilla, speaking for
the court, categorically held that the Rules of Court had not repealed and supplanted the provisions
of the Revised Administrative Code regarding the power and authority of the City Fiscal to conduct
preliminary investigation." And in Hashim vs. Boncan, the Court, through Mr. Justice Laurel, said:

The framers of the Rules could not have intended to brush aside these lessons of experience
and to tear down an institution recognized by law and decision and sanctioned by years of
settled practice. They could not have failed to keep intact in effective machinery in the
administration of criminal justice, as expeditious and simple as any reform they have infused
into the new Rules.

The term "proper court or judge" in section 17, Rule 109, of the Rules of Court1 should be interpreted
to mean, in the case of Manila, city fiscal, under the last mentioned canon of interpretation. In
Manila, the city fiscal performs the duties devolving on justices of the peace in regular municipalities
in the conduct of preliminary investigations, and all criminal charges by the police and offended
parties are filed with him. And it is admitted that prisoners arrested without warrant in Manila may be
taken only to the city fiscal by the arresting officer. Let it be noted also in this connection that section
17 of Rule 109 regulates the taking of persons arrested to the court or judge, not the filing of
complaint.

In view of this circumstances; in view of the fact that neither the judges of first instance nor the
municipal judges of Manila are authorized to conduct preliminary hearings other than the purpose of
determining the amount of bail (section 2474 of the Revised Administrative Code), the result of
applying section 17 of Rule 109 to Manila would be virtually to eliminate preliminary investigation in
this city of persons arrested without a warrant. The decision creates a vacuum, a situation which this
Court on another occasion refused to countenance in the forceful language above quoted in
Hashim vs. Boncan et. al. There, the Court continued:
 To sustain the theory of repeal is to wipe out these advantages. Not only this. If neither
section 11 nor section 13 of Rule 108 is applicable to the preliminary investigation conducted
by the City Fiscal, as we have above shown, and if existing legislation thereon is to be
deemed repealed, then the matter would be left uncovered by rule or law. There would thus
be a void crying for urgent reform. There would be no such void if the old and tried procedure
is kept in being, untouched by the new Rules. Withal, our own knowledge of the history of
this portion of the Rules here involved does not warrant an interpretation not contemplated
when we drafted and deliberated upon these Rules. And while, perhaps, the language could
have been clearer and the arrangement made more logical, consideration to expediency and
the avowed purpose of preliminary investigation point to the already trodden path
hereinabove indicated.

The resolution has interpreted article 125 of the Revised Penal Code with meticulous adherence, at
best, to its latter, and open disregarded, at worst, of its spirit and of the pernicious results that follow
from such interpretation. The construction which the majority give to the term "judicial authority"
makes it impossible for the city fiscal to perform his assigned duties with the consequence that for
lack of time, malefactors will have to be turned loose before proper investigation in conducted, or
prosecution filed on insufficient evidence, in many cases.

Nevertheless, I am not pleading, in the case, for a departure from the letter of the law. I merely
submit that the city fiscal, as was emphasized in my dissent from the decision, is a judicial officer or
judicial authority both in the popular and the legal sense of the term, and that it is unjust,
unwarranted by any rule of interpretation, absolutely disastrous to the administration of criminal law
to identify the city fiscal with the police, forcing him to file an information or release the prisoner
within the six hours intended for the arresting officer alone. I do not contend that the term "judicial
authority" be expanded beyond its literal and legal meaning, although if necessary this might be
done to carry out the obvious purpose of the law, but I take exception to the unjustified restriction
and limitation placed on the meaning of "judicial authority" which not only does violence to the letter
and spirit of article 125 of the Revised Penal Code but leads to an extremely anomalous, not to say
impossible, situation. We do not have to look outside for the meaning of "judicial authority," as a
simple reading of article 125 of the Revised Pena Code and section 2474 of the Revised
Administrative Code yields the clear intent of the legislature. This intent, as manifested in laws that
have been amended by section 2465 and section 2474 of the Revised Administrative Code,
crystalized in a system of practice that have received "the imprint of judicial approval" in various
decisions of this Court. (U. S. vs. McGoven, 6 Phil. 261; U. S. vs. Ocampo, 18 Phil. 122;U. S. Carlos,
21 Phil. 553; Hashim vs. Boncan, ante; Espiritu vs. De la Rosa, ante.)

The resolution, as a solution to the quandary in which it places the city fiscal, would have him go to
Congress. But, as I trust I have shown, the laws on the subject need no supplementation and
implementation. They have no gaps to be filled or ambiguities to be cleared. The loopholes exist only
as a direct result of this Court's new ruling. Section 2474 of the revised Administrative Code and its
predecessors have operated smoothly, without a hitch for nearly half a century. Not even when the
arresting officer had 24 hours to take arrested persons to a judicial authority was it ever imagined,
much less asserted, that the city fiscal had to borrow his time from the police.

The resolution in laying down the rule that the city fiscal has no power to issue warrant of arrest or
"an order or commitment of release by a written warrant containing the ground on which it is based,"
thinks it is necessary to advert, "in justice to the city fiscal," that this official does not pretend to
possess such authority, since it is only in the dissenting opinion, it says, where the claim is made.

At the outset I deny that I attributed to the city fiscal power to issue warrant of arrest; and did not say
in an unqualified manner that he has power to issue commitment. On the first point, what I said was
an implicit aknowledgment of the opposite. Let me quote from the second paragraph of page 2 of my
dissenting opinion what I did say:

The city fiscal is not any the less a judicial officer simply because he can not issue warrant of
arrest. The power to issue warrant of arrest is not essential ingredient of a judicial office.

On the power to commit prisoners, the same paragraph of my opinion shows what I said.

As to the power to commit a detained person to prison, if that be necessary, the majority are
not exactly right when they affirm that the city fiscal is not clothed with it. It shall come to this
later.

And taking the matter up again on page 11, I said:

Section 2460 of the Revised Administrative Code authorizes the chief of police of the City of
Manila "to take good and sufficient bail for the appearance before the city court of any
person arrested for violation of any city ordinance," while in cases of violation of any penal
law, according to the same article, the fiscal of the city may, and does, recommended and fix
the bail necessarily implies power to recommend or order the detention of the prisoner if
bond is not given. This i its working is no more nor less than the power to commit an accused
to prison pending investigation of his case, power which the majority erroneously say is not
possessed by the city fiscal.

There is nothing in this statement any outright affirmation that the city fiscal has power to issue
commitment papers. There is, on the contrary, an implied admission that the power, as it is ordinarily
exercised by a judge or court, does not exist. I merely submitted as my personal opinion and
interpretation of section 2460 of the Revised Administrative Code, regardless of what the city fiscal
thinks, that it confers upon the latter official a power which, performed in conjunction with the power
of the chief of police, amounts in its practical operation to a power to commit a man to prison. And I
said this in answer to the sweeping assertion (which apparently was made in the decision in
complete oblivion of section 2460, supra), that to give the city fiscal unlimited time might result in
injustice, since, the decision says,

The city fiscal may not, after due investigation, find sufficient ground for filing an information
or prosecuting the person arrested and release him, after the latter had been illegal detained
for days or weeks without any process issued by a court or judge.

I intended to emphasize by citing section 2460 of the Revised Administrative Code, that a prisoner
could secure his released, pending investigation of his case, in the same manner and with the same
facilities that he could if the complaint or information had been filed with a court. In citing and stating
my interpretation of section 2460 of the Revised Administrative Code, I wished to show what I
considered an erroneous ruling that

If the city fiscal has any doubt as to the probability of the defendant having committed the
offense charged, or is not ready to filed the information on the strength of the testimony or
evidence presented, he should release and not detain the person arrested for a longer period
than that prescribed in the Penal Code.

The majority come back with the assertion that the provisions of section 2460 of the Revised Penal
Administrative Code2
 do not authorize, either expressly or by implication, the city fiscal to order the detention of the
prisoner if the bond is not given, not only because they refer to the power of the chief of
police of Manila and not of the city fiscal, but because the only incidental authority granted to
the latter is to recommend the granting of the bail by the chief of police may release the latter
on bail.

I disagree again. I do not believe that a provision is rendered nugatory by the mere fact that it is
foreign to the subject of the main provision or to the title or caption of the section, if otherwise the
language is clear. The title or caption is important only in determining the meaning of laws which are
ambiguous and uncertain. The provision of section 2460 of the Revised Administrative Code quoted
in the resolution does not suffer from such infirmity.

In truth, the proviso in section 2460 is not alien to the enacting clause. The proviso relates to the
chief of police, conferring on him power of the same nature as does the enacting clause, with the
only difference that, in cases of violations of a municipal ordinance the chief of police acts
independently, on his own responsibility, while in cases of violations of a penal law, he acts with the
advice of the city fiscal and the latter fixes the amount of bail. The intervention of the city fiscal was
only inserted, in my opinion, in view of the gravity of the latter class of cases.

As to the other reason given in the resolution why, it says, continued detention of a prisoner beyond
six hours is not authorized namely, that the authority granted to the city fiscal to recommend the
granting of bail by the chief of police and to fix the amount of bail to be required of the person
arrested, is only incidental my comment is that, whether the power to take bail or release
prisoners belongs to the city fiscal or the chief of police, is inconsequential. To my mind, the
important point is that the accused, as the resolution admits, may be released on bond. From this
power, irrespective of who possess it, is implied the power to keep the prisoner under detention if he
does not file a bond.

When the resolution concludes that if no bond is given by the person arrested, "neither the chief of
police, who is only authorized to release on bail, has power to detain the person arrested for more
than six hours; not the city fiscal, who is empowered to fix and recommend the bail to the chief of
police has authority to release person arrested in violation of penal law," I can not follow. In a
nutshell, the majority's reasoning, as I understand it, is that the law authorizes the city fiscal to
recommend and fix the bail "in order that the chief of police may release the latter (prisoner) on bail,"
but that if the prisoner does not put up a bond to be set at large just the same. The filing of bail is not
a meaningless gesture which may be taken advantage of by an accused at pleasure with the same
effect. The privilege to put a bond extended to an accused must be the price or condition of his
temporary release. The law does not have to say in so many words that if he does not put a bond he
would be kept in confinement in order that we may be warranted in reaching this result.

The resolution says that "the purpose of the law in empowering the chief of police of Manila to
release the prisoner if he puts up a bail, is to relieve the officer making the arrest the necessity of
taking the prisoner to the city fiscal, and the latter from filing an information with the proper courts
within the period of time prescribed by law."

I have reflected closely on the meaning of this statement to be sure that I did not misunderstand it.
Unless I still fail to grasp the idea, I think the statement is self-annulling and self contradictory. The
filing of bail cannot relive the arresting officer from the necessity of taking the prisoner to the city
fiscal for the simple reason that such bail, in cases of violations of penal laws, can be filed only on
recommendation of, and its amount can be fixed by, the city fiscal. In other words, the prisoners
necessarily has to be taken to the city fiscal before any bond can be executed. And it would be
underestimating the intelligence of an accused to expect him to file a bond within six hours from the
time of his arrest if he is aware that, if at the end of those hours the city fiscal had not preferred any
charges against him and no order of commitment had been issued by the proper judge, he
(accused) had to be released. In the face of the latter theory, no prisoner would, even if he could,
perfect a bond within six hours knowing that if he did not, he would be a free man, at leased
temporarily, within what remains of six hours, while if he did, the bond would enable the city fiscal to
take his time to file case against him in court.

The gravamen of the court's argument seems to be that a commitment by a court or judge is
essential to validate the detention beyond the time specified in the Revised Penal Code. I do not
share this opinion. Neither such commitment by a judge nor a formal complaint is required by the
constitution in order that a person may lawfully be kept in jail pending investigation of his case. An
opportunity to file a bond in reasonable amount satisfies the constitutional demands. Nor does the
bail have to be fixed or granted by a court. Sheriffs and police officers have been authorize by
statutory enactments in other jurisdiction to take bail. At least one court has gone so far as to uphold,
"independently of statue, a practice of long standing on the part of the sheriff to take bail in criminal
cases of prisoners committed for not filing bail, and release them from confinement." (Dickinson vs.
Kingsbury, 2 Day [Com., 1.] Now then, under section 2460 of the Revised Administrative Code, the
chief of police of Manila, as already shown, is allowed to take bail by himself in cases violation of a
municipal ordinance and with the intervention of the city fiscal in other cases. Under this provision
and this practice, a detention prisoner arrested without warrant is not deprived of any privilege of
benefit guaranteed by the constitution. The lack of formal complaint does not in the least prejudice
him or deprive him of any benefit enjoined by his counterparts in the provinces. On its legal aspect,
let it be observed that all the proceedings conducted by the city fiscal is a preliminary and summary
inquiry which is purely a matter of statutory regulation. Preliminary investigation by the prosecuting
attorney when authorized by law is due process no less than one conducted by a judge. It may be
suppressed entirely, and if it may be suppressed, it may be entrusted to any officer, provided only
the constitutional right to give bail is carefully safeguarded. As this Court has said in Hashim vs.
Boncan, supra, and U.S. vs. Ocampo, supra:

The prosecuting attorney of the city of Manila is presumed to be as competent to conduct a

preliminary investigation as the average person designated by law to conduct a "preliminary
examination" under the provisions of General Orders No. 58. He is a sworn officer of the
court, and the law imposes upon him the duty of making such investigations. For such
purpose the legislature may designate whom it pleases within the judicial department.

The resolution has taken pain to cite and explain in detail what it says are the laws on arrests in the
Philippines, and takes me to task for quoting from 6 Corpus Juris Secundum, 599-600 and citing the
decisions of this Court. We are told the effect that the excerpts from my dissenting opinion, quoted
on page 16 of the resolution are without any foundation because, it is said,

they are premised on the wrong assumption that, under the laws in force in our jurisdiction, a
place officer need not have personal knowledge but may arrest a person without a warrant
mere information from other person.

The resolution assumes that those excerpts are predicated on what I call the common law rule, on
Corpus Juris Secundum, and on decisions of the Supreme Court.

I commend a reading to my dissenting opinion. It will be seen that I did not base on those laws, rules
or decisions my statements, "The entire six hours might be consumed by the police in their
investigation alone;" "Even if the city fiscal be given the chance to start his assigned task at the
beginning of the six hour period, this time can not insure proper and just investigation in complicated
cases and in cases where the persons arrested are numerous and witnesses are not on hand to
testify," and "The police is not authorized to round up witnesses and take them along with the
prisoner to the city fiscal." It will be seen that far from using as my premise those laws, rules and
decisions, which I said contain in brief outlines the powers of police officers to make arrests, I said
clearly on page 12 of my dissenting opinion:

I do not think the foregoing paragraph is relevant to the instant case. We are not dealing with
the authority of the police officer to make arrest without warrant. There is no question raised
against the legality of the prisoner's arrest. Our problem concerns the time period within
which the city fiscal may make his investigation, and the scope of his power.

It was the majority decision which brought the question of the authority of the police to make arrests
into the discussion. I only met the decision on its own territory though I regarded that territory as
outside the legitimate circle of the present dispute. I cited Corpus Juris Secundum and decisions of
this Court, which I said are derived from common law, to refute the statement,

a fortiori, a police officer has no authority to arrest and detain a person charged with an
offense upon complaint of the offended party or other person seven though after
investigation, he becomes convinced that the accused is guilty of the offense charged.

I especially wanted to express my disagreement with the thesis in the decision that

A peace officer has no power or authority to arrest a person without a warrant upon
complaint of the offended party or any other person, except in those cases expressly
authorized by law.

It was my humble opinion that the rules I cited and the rules on which the decisions of this Court are
predicated, were general provisions of law applicable to varying and changed circumstances, and I
wanted to deny the insinuation that there were, or there might be, arrests without warrant "expressly
authorized by law"; so I countered that "I have not come across any law naming specific offenses for
committing which the offenders shall be arrested without court orders." This is my concept of
express provisions authorizing arrests without a warrant.

Section 6 of Rule 109, section 2463 of the Revised Administrative code, and the provisional Law on
the subject of arrest, cited in the resolution in an attempt to show the error of my citations, can not be
a source of comfort to the majority. Rather, I should think, they reinforce my position, for I believe
that the rules and decisions I cited the rules and laws called to our attentions as the real thing, are in
substantial agreement. My mistake was in not citing, myself, Rule 109, section 6, of the Rules of
Court, section 2463 of the Revised Administrative Code, and the Provisional Law. I might have found
and cited them had I thought the matter worthy of more than a passing notice.

Now that the resolution has gone into this subject at length, I shall devote a few more lines to it at
the peril of tiring the reader on what I believe an impertinent topic.

My citation from Corpus Juris and my comment that "this is a common law rule implanted in the
Philippines along with its present form of government, a rule which have been cited or applied by this
Court in a number of case," has met with decision. I am informed that my quotation is "not a general
principle of law or common law rule implanted in the Philippines"; that "it is the summary of the ruling
of several states courts based on statutory exceptions of the general rule."

I do not think I wise wide off the mark when I said that the common law rule has been transplanted to
this country along with the present form of government and that the rules and decisions I have
quoted spring from the common law. And the majority are not closer to the marked when they
affirmed that my quotation from Corpus Juris Secundum, and section 2463 of the Revised
Administrative Code are purely statutory creation.

There was common law before there were statutes. Common law in England and in the U. S.
preceded statement statutes and constitutions. Statutes and constitutions in matters of arrest came
afterwards, restating, affirming, clarifying, restricting or modifying the common law.

The English common law has been adopted as the basis of jurisprudence in all the states of
the Union with the exception of Louisiana "where the civil law prevails in civil matters." (11
Am. Jur., 157.) And

in England, under the common law, sheriffs, justices of the peace, coroners, constables and
watchmen were entrusted with special powers as conservators of the peace, with authority to
arrest felons and persons reasonably suspected of being felons. Whenever a charge a
felony was brought to their notice, supported by reasonable grounds of suspicion, they were
required to apprehend the offenders, or at the least to raise hue and cry, under the penalty of
being indicted for neglect of duty.

See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the numerous cases therein
cited. It is a footnote appended o the statement of a common law principle which of the same tenor
as that just noted. Treatises on arrest not infrequently start with a statement of the common law rule
and speak of statute and constitutions in the sense I have mentioned. Moran's Commentaries on the
Rules of Court mention of the common law. (Vol. 2, p. 577) in connection with the power to make
arrest without a warrant.

The doctrine taken from 5 C. J., 395-396-that "the right to make arrest without a warrant is usually
regulated by express statute, and, except as authorize by such statutes, an arrest without a warrant
is illegal" is not at war with the proposition that the authority of peace officers to make arrest
originated at common law and that constitutions and statutes merely re-stated and defined that the
authority with greater precision, naming the officers who may make arrest, the grades of offenses
for, and the circumstances under, which arrest may be effected, etc. Arrests made by officers not
designated or under circumstances not coming within the terms of the statute or constitution are
illegal.

Even then, broad constitutional or statutory inhibition against search and seizure of property or
persons without a warrant has exceptions, as can be inferred from the two sentences preceding the
above sentence quoted in the resolution. This exceptions are cases where the public security has
demanded the search and seizure.

Well established exceptions to this rule have been long recognized in cases of felony, and of
breaches of the peace committed in the presence of the party making the arrest. (5 C. J.,
395.)

Arrests under such circumstances are authorized in spite of statutes and constitutions. The power to
make such arrest is deeply rooted in the unwritten or common law, which "includes those principles,
usage and rules of action applicable to the government and security of person and property which do
not rest for their authority an any express or positive declaration of the will of the legislature."
Although acting at his peril, the powers to arrest on" probable cause of suspicion" even by a private
person are "principles of the common law, essential to the welfare of society, and not intended to be
altered or impaired by the Constitution." (Wakely vs. Hart, 6 Binn. [Pa.,], 316.)
I have remarked that there is no fundamental difference between my citations, on the other hand,
and section 6 of Rule 109 and section 2463 of the Revised Administrative Code, Cited by the
majority of the Court, on the other hand. There is only a difference in phraseology. The very case of
U. S. vs. Fortaleza relied upon in the resolution speaks of barrio lieutenant's power to make arrest as
not inferior to that usually conferred on peace officers known to American and English law as
constables.

The resolution quotes this from 5 C. J., 404:

It is a general rule, although there are statutory exceptions and variations that a peace officer
has no right to make an arrest without a warrant upon mere information of a third person.

This is only a part of the sentence. The omitted portion is more important from my point of view and
contradicts the point of view and contradicts the point stressed by the majority. The complete
sentence in.

It is a general rule, although there are exceptions and variations, that a peace officer has no
right to make an arrest without a warrant, upon mere information of a third person or mere
information of committed, that right being limited to arrests for offenses of the grade of
felony, as elsewhere shown.

It will be noticed that the quoted portion relates to arrest for misdemeanor. For further proof, I invite
attention to the title of the Section on page 401, paragraph (a), which reads: "For
Misdemeanor aa. In General." Let it be noted that the power to arrest for misdemeanor is different
from, and more restricted than, the power to arrest for felony, as is further demonstrated by the last
clause of the full sentence above quoted. This clause refers us back to section 30, p. 399, which
says:

"At common law, (here again common law mentioned), and subject to the provisions of any
applicatory statute, and subject officer may arrest, without a warrant, one whom he has reasonable
or probable grounds to suspect of having committed of felony, even though the person suspected is
innocent, and generally, although no felony has in fact been committed by any one, although, under
some statutes a felony must have been actually committed, in which case an may arrest, without a
warrant, any person he has reasonable cause for believing to be the person who committed it."

As is elsewhere stated, section 6 of Rule 109 and section 2463 of the Revised Administrative Code,
like the authorities I have cited, do not limit the power of a police officer to make arrest tho those
cases where he saw with his own eyes or heard with his own ears the commission of an offense.
Section 6 of a Rule 109 and section 2463 of the Revised Administrative Code empowers police
officers.

to pursue and arrest, without warrant, any person found in suspicious places or under
suspicious circumstances reasonably tending to show that such person has committed, or is
about to commit, any crime or breach of the peace,

and section 6 of Rule 109 authorizes a peace officer or a private person to make arrest when

an offense has in fact been committed, and he has reasonable ground to believe that the
person to be arrested has committed it
Rule 28 of the Provincial Law itself empowers judicial and administrative authorities "to detain, or
cause to be detained person whom there is reasonable ground to believe guilty of some offense" or
"when the authority or agent has reason to believe that unlawful act, amounting to a crime had been
committed."

To make arrest on suspicion or on information is not new; it is an everyday practice absolutely

necessary in the of public security and firmly enshrined in the jurisprudence of all civilized societies.
The power to arrest on suspicion or on reasonable ground to believe that a crime has been
committed is authority to arrest on information. Information coming from reliable sources maybe, and
it often is, the basis reasonable ground to believe that a crime has been committed or of reasonable
ground of suspicion that a person is guilty thereof. Suspicion reasonable ground and information are
interviewed within the same concept.

The necessary elements of the ground of suspicion are that the officer acts upon the belief of
the person's guilt, based either upon facts or circumtances within the officers own
knowledge, or information imparted by a reliable and credible third person provided there are
no circumstances known to the officer sufficient to materially impeach the information
received, It is not every idle and unreasonable charge which will justify an arrest. An arrest
without a warrant is illegal when it is made upon mere suspicion or belief, unsupported by
facts, circumstances, or credible information calculated to produce such suspicion or belief.

Failure to take these principles into account has led to the belief that:

The investigation which the city fiscal has to make before filing the corresponding information
in cases of persons arrested without a warrant, does not require so much time as that made
upon a complaint of the offended parties for the purpose of securing a warrant of arrest of
the accused. In all cases above enumerated in which the law authorizes a peace officer to
arrest without warrant, the officer making the arrest must have personal knowledge that the
person arrested has committed, is actually committing, or is about to commit an offense in
his presence or within his view, or of the time, place or circumstances which reasonably tend
to show that such person has committed or is about to commit any crime or breach of the
peace. And the testimony of such officer on the commission on the offense in his presence
or within his view by the person arrested, or on the facts and circumstances that tend
reasonably to show that said person has committed or is about to commit an offense, would
be sufficient evidence or basis for the city fiscal to file an information without prejudice to his
presenting of other evidence of the defendant. (Pp. 16-17 of the Resolution.).

Section 6 of Rule 109 of the Rules of Court and section 2463 of the Revised Administrative Code, as
well as the authorities I have quoted, show the fallacy of the idea that the arresting officer knows, or
should know, all the facts about the offense for the perpetration, or supposed perpetration, of which
he has made the arrest. The resolution fails to realize that in the great majority of cases an officer
makes arrest on information or suspicion; that "suspicion implies a belief or opinion as to the guilt
based upon facts or circumstances which DO NOT AMOUNT TO PROOF," and that information and
suspicion by their nature require verification and examination of the informers and other persons and
circumstances. While an officer may not act on unsubstantial appearances and unreasonable stories
to justify an arrest without a warrant, obviously in the interest of security, an officer who has to act on
the spot and cannot afford to lose time, has to make arrest without satisfying himself beyond
question that a crime has been committed or that the person suspected is guilty of such crime. A
police officer can seldom make arrest with personal knowledge of the offense and of the identity of
the person arrested sufficient in itself to convict. To require him to make an arrest only when the
evidence he himself can furnish proves beyond reasonable doubt the guilt of the accused, would
"endanger the safety of society." It would cripple the forces of the law to the point of enabling
criminals, against whom there is only moral conviction or prima facie proof of guilt, to escape. Yet
persons arrested on necessarily innocent so that the prosecuting attorney should release them.
Further and closer investigation not infrequently confirm the suspicion or information.

The majority of arrests are not as simple as a police officer catching a thief slipping his hand into
another's pocket or snatching someone else's bag, or suprising a merchant selling above the ceiling
price, or seizing a person carrying concealed weapons. Cases of frequent occurrence which confront
the police and the prosecution in a populous and crime-redden city are a great deal more
complicated. They are cases in which the needed evidence can only be supplied by witnesses,
whom the arresting officer or private persons has not the authority or the time to round up and take
to the city fiscal for examination with in what remains, if any, of six hours.

Let me give two examples.

1. A murder with robbery is reported to the police. An alarm is broadcasted giving a description of
the murderer. Later a police officer is told that the wanted man is in a store. He proceeds to the store
and. besides believing in good faith of his informant, detects in the man's physical appearance some
resemblance to the description given in the alarm. All this occurs at the holy hours of night.

Should the officer refrain from making an arrest because he is not certain beyond reasonable doubt
of the identity of the suspected murderer? Should the city fiscal order the release of the prisoner
because of insufficiency of evidence and because the six hours are expiring, or should he prefer
formal charges (if that can be done at midnight) on the strength of evidence which, as likely as not,
may be due to a mistaken identify? Should not the prosecuting attorney be given, as the law clearly
intends, adequate time to summon those who witnessed the crime and who can tell whether the
prisoner was the fugitive?, allowing the prisoner to give bail, if he can.

2. A police officer is attracted by screams from a house where a robbery has been committed. The
officer rushed to the place, finds a man slain, is told that the murderers have filed. The officer runs in
the direction indicated and finds men with arms who, from appearances, seem to be the perpetrators
of the crime. The people who saw the criminals run off are not sure those are the men they saw. The
night was dark, for criminals like to ply their trade under cover of darkness.

The officer does not, under these circumstances, have to seek an arrest warrant or wait for one
before detaining the suspected persons. To prevent their escape he brings them to the police
station. On the other hand, would the fiscal be justified in filing an information against such persons
on the sole testimony of the police officer? It is not his duty to wait for more proofs on their probable
connection with the crime? Should the city fiscal file an information on sufficient evidence, or should
he as the only alternative, order the release of the prisoners? Does either course subserve the
interest of justice and the interest of the public? If the arrested persons are innocent, as they may
be, is either interest be served by hasty filing of information against them, or would they rather have
a more thorough investigation of the case?

Cases like these with varying details can be multiplied ad infinitum. They form the bulk of underworld
activities with which the forces of law have to cope and with which the general public is vitally
concerned. The public would not be secure in their homes and in the pursuit of their occupations if
his Court, through unreasoning worship of formalism, throws down a method, practice and
procedure that have been used here and elsewhere from time immemorial to the end of service and
in the interest of public security. The public security. The public is not much interested in such minor
offenses as pick-pocketing, fist fights and misdemeanors or violations of municipal ordinances for
which arrests can be made by police officers only when committed in their presence or within their
hearing.
The decision of this Court leaves the city fiscal no alternative between releasing prisoners for
insufficiency of evidence due to lack of time to secure more, and filing information against persons
who may be innocent of the crimed charge. The latter course, defeats directly the very aims of
preliminary investigation is to secure the innocent against hasty, malicious and oppresive
prosecution and to protect him from open and public accusation of crime, and from the trouble,
expense, anxiety of a public trial, and also to protect the State from useless and expensive
prosecutions. (Hashim vs. Boncan, No. 47777, January 13, 1941; 40 Off. Gaz., 13th Supp. p. 13;
U.S. vs. Mendez, 4 Phil.; 124; U.S. vs. Grant and Kennedy, 11 Phil. 122; U. S. vs. Marfori, 35 Phil.
666; People vs. Colon, 47 Phil. 443.) Even more deplorable would be the acquittal of guilty accused
due to lack of proofs which the prosecution, if it had been afforded sufficient time, could have
gathered.

The foregoing goes, too, for the concurring opinion. There is only one more point to which we wish to
address ourselves briefly. The concurring opinion contains this passage:

Dentro de las 6 horas hay tiempo mas que suficiente para meter en cuenta atoda la canalla
... Pero; por Dios que no se violen ni pisoteen lasgarantias constitucionales por miedo a
los gangsters!

No one can disagree with this though as an abstract proposition. The only trouble is that the
opinion does not cite any concrete constitutional provision or guaranty that is infringed by our
dissent. I take the suggestion in the resolution that "it would be proper for the interested parties to
take the case to Congress, since it can not be done by judicial legislation" to be a tacit recognition
that the matter is purely one of statute and that no constitutional impediment is in the way of
changing the law and enlarging the power of the city fiscal in the premises. And let it be said that the
objection in the concurring opinion to this suggestion is rested, not on constitutional grounds but on
the supposition that the law is good enough to be left alone. All which tempts us to paraphrase the
famous apostrophe of that equally famous woman in French history, and exclaim, "Oh Constitution!
what grievous mistakes are committed in thy name!"

The concurring opinion is in error when it sees shadows of fear gangster in our dissent. Society no
less than a natural person has the right to protect itself, and the arrest and punishment of
transgressors of its laws is one of its legitimate means of self-protection and self-preservation. As far
as the insinuation of fear may reflect on those who are duty bound to have part in such arrest and
punishment, the application of criminal laws without quarters to the end which they are intended to
serve, is not in strict logic a sign of apprehension. Such course, rather than tolerance, leniency or
indifference towards crimes and appeasement of lawless and other elements and groups who wield
the power of physical and verbal relations, calls for exactly the opposite quality of fright.

Padilla, J., concurs.

[G.R. No. L-1159. January 30, 1947.]

CECILIO M. LINO, Petitioner, v. VALERIANO E. FUGOSO, LAMBERTO JAVALERA, and JOHN DOE, in
their capacity as Mayor, Chief of Police and Officer in charge of municipal jail, all of the City of
Manila, respectively, Respondents.

Emanuel Peldez, Francisco A. Rodrigo, Enrique M. Fernando, Manuel M. Crudo, Claudio Teehankee
and Jose W. Diokno Fiscal Jose P. Bengzon, for Respondent.
 City Fiscal Jose P. Bengzon, for Respondent.

SYLLABUS

1. HABEAS CORPUS; ARREST WITHOUT WARRANT; DETENTION AFTER SIX HOURS WITHOUT DELIVERY TO
JUDICIAL AUTHORITIES; ILLEGALITY OF, NOT CURED BY FILING OF INFORMATION; CASE AT BAR.
Assuming that P. D. and P. M. were legally arrested without warrant, their continued detention became
illegal upon the expiration of six hours without their having been delivered to the corresponding judicial
authorities. The illegality of their detention was not cured by the filing of informations against them, since no
warrants of arrest or orders of commitment have been issued by the municipal court up to the hearing of
this case before this Court.

2. ID.; ARREST WHEN INFORMATION IS FOR LIGHT OFFENSE; ARREST WITHOUT WARRANT; DETENTION
THEREUNDER. The general rule is that when the offense charged is light the accused should not be
arrested except in particular instances when the court expressly so orders in the exercise of its discretion.
While an arrest may be made without warrant when there are reasonable grounds therefor (Rule 109 section
6 Rules of Court), the prisoner cannot be retained beyond the period provided by law unless a warrant is
procured from a competent court.

3. ID.; ARREST; CITY FISCAL AUTHORITY OF, TO ISSUE WARRANT OF. The City Fiscal has no authority to
issue warrants of arrest, and is powerless to validate an illegal detention by merely filing informations or by
any order of his own either express or implied.

4. ID.; CITY FISCAL; POWER OF, TO ORDER COMMITMENT OR RELEASE ON BAIL OF ACCUSED. The City
Fiscal has no power to order either the commitment or the release on bail of persons charged with penal
offenses.

Per PERFECTO, J., concurring: chan rob1e s virtual 1aw l ibra ry

5. EXPEDITING HABEAS CORPUS PROCEEDING. Cases of habeas corpus, by their very nature if the
remedy is to be effective and there is an earnest desire to avoid a failure of justice should be disposed of
without any delay, as was done in Taada v. Quirino (42 Off. Gaz., 934).

6. RESPONDENTS ACTIONS NEED BE COUNTERACTED. Speedy action is necessary to squelch the tactics
of respondents who are bent on exerting all the power and ability that they command to mock at the action
of the courts as exemplified by the case of Villavicencio v. Lukban (39 Phil. 778-812).

7. OFFICIAL DISREGARD FOR FUNDAMENTAL HUMAN RIGHTS. Twelve humble peaceful and law-abiding
citizens while in the peaceful exercise of their constitutional rights of freedom of expression and to
peaceably assemble, the right to enlist public support in the pursuit of their right to a decent living wage,
and the right to petition their own government for the redress of their grievances are abruptly interrupted in
the exercise of their rights and violently hauled into prison as dangerous criminals.

8. IGNORANCE OF THE CONSTITUTIONAL BILL OF RIGHTS. Ignorance of the constitutional Bill of Rights
by the erring officials is no justification. It only aggravates the situation. It shows unpardonable dereliction
of duty and recklessness of responsible high authorities.

9. PEACE OFFICERS. Peace officers are duty bound to know the law. They are also known as law officers,
because it is their essential function to enforce the laws. At least, they ought to know the Constitution and
learn by heart the Bill of Rights.

10. OFFER OF PROVISIONAL RELEASE OF BAIL. That the twelve detainees were offered provisional
release if they should post a bail of P12,000 each, does not make legal their illegal detention. The required
bail only tends to show respondents stubbornness in the exercise of an illegal power, and the fact that the
amount of P12,000 was required of persons who were not receiving even the miserable pittance, to secure
the increase of which they went into strike, appears to be an unbearable sarcasm.

11. SEDITION. The allegation that the arresting officers believe that the detainees, are guilty of sedition
holds no water when respondents themselves confess that no such crime was committed. Sedition is the
crime usually resorted to by tyrants as a pretext to silence or suppress those persons who have the firmness
of character to oppose them and expose their abuses.
12. ONE-FOURTH OF A CENTURY PRONOUNCEMENTS. The pronouncements made by the Supreme Court
one-fourth of a century ago on fundamental civil rights are quoted in the opinion.

13. VIRUS OF THE JAPANESE FEUDALISTIC IDEOLOGY. The wanton disregard by those responsible for the
arrest of the twelve detainees of their fundamental rights as guaranteed by the Constitution, shows that the
Japanese feudalistic ideology, as propagated during enemy occupation, has left its pernicious virus in our
soil.

14. ARBITRARINESS AND ILLEGAL DETENTION. These Government officers who are responsible for the
detention and confinement of the twelve detainees are liable for prosecution under articles 124 and 125 of
the Revised Penal Code.

15. POOR FACE-SAVING DEVICE. The filing of information for insignificant misdemeanors against P. M.
and P. D. appears to us as a poor face-saving device to justify, in some way, their further detention and
should not be countenanced as a means to defeat the release of said two detainees.

16. PERILOUS PATH. Those who under the pretext of subduing allegedly seditious persons, committed the
arbitrariness complained of in the petition, trod a perilous path that, as shown by the experience of other
countries, usually leads to the implantation of a dictatorship, whose whole philosophy is built upon the
hateful slogan that everything, including the most cherished possessions and the most blessed ideals of the
people, should be sacrificed for the sake of state supremacy.

17. PRICE OF HUMAN RIGHTS. Eternal vigilance and constant willingness and readiness to fight for them
are the price of human rights. The existence of liberal elements, always watchful and ready to defend
victims of violations of the Bill of Rights, is necessary to vitalize democracy and to give tangible reality to the
guarantees of the Constitution.

18. CONDITIONS AND QUALITIES REQUIRED. The attainment of great ideals needs faith, passionate
adherence to them, the militant attitude manifested in the inflicting readiness to fight and face hardships
and sacrifices, unconquerable steadfastness and unbreakable perseverance in the face of obstacles and
setbacks. These are the conditions and qualities needed by all liberal and progressive spirits to keep lighted
the torch of liberty, to squelch the hydra of reaction, to conserve the moral heritage of advancement and
conquests in the emporium of human rights bequeathed by the champions and martyrs who waged the
heroic battles for real spiritual values and for the dignity if man as the image of God.

DECISION

MORAN, C.J. :

This is a petition for a writ of habeas corpus filed in behalf of twelve persons alleged to be unlawfully
detained by respondents Valeriano E. Fugoso, Lamberto Javalera and John Doe in their capacity as mayor,
chief of police and officer in charge of the municipal jail of the City of Manila, respectively. It is alleged in
respondents return that ten of the petitioners had already been released, no sufficient evidence having been
found to warrant their prosecution for inciting to sedition, but that the remaining two, Pascual Montaniel and
Facifico Deoduco, are being held in custody because of charges filed against them in the municipal court
unjust vexation and disobedience to police orders, respectively.

After hearing, by minute resolution we dismissed the case with respect to the petitioners already released
and we ordered the release of the remaining two, Montaniel and Deoduco, without prejudice to a reasoned
decision which we now proceed to render.

The case of the ten petitioners has become academic by their release. The purpose of a writ of habeas
corpus is only to set them free. After they are freed, the writ is purposeless. If they have been the victims of
illegal arrest or detention, they can have recourse to criminal actions in the proper courts.

As regards the remaining two petitioners, the pertinent facts as admitted at the hearing by respondents, are
as follows: Pascual Montaniel was arrested without warrant by the police officers of Manila on November 8,
1946, for inciting to sedition, and Pacifico Deoduco, on November 7, 1946, for resisting arrest and
disobedience to police orders. On November 11 when this petition for habeas corpus was filed, these two
petitioners were still under arrest. They were thus held in confinement for three and four days, respectively,
without warrants and without charges formally filed in court. The papers of their cases were not transmitted
to the City Fiscals office until late in the afternoon of November 11. Upon investigation by that office, no
sufficient evidence was found to warrant the prosecution of Pascual Montaniel for inciting to sedition and of
Pacifico Deoduco for resisting arrest, but both remained under custody because of informations filed with
minuet charging Montaniel with unjust vexation and Deoduco with disobedience to an agent of a person in
authority under the second paragraph of article 151 of Revised Penal Code. These informations were filed on
the same day when this case was heard before this Court, that is, on November 12, 1946. And so far, no
warrants of arrest or orders of commitment are shown to have been issued by the municipal court pursuant
to the informations thus filed.

Under these facts, the detention of Pacifico Deoduco and Pascual Montaniel is illegal. Even assuming that
they were legally arrested without warrant on November 7 and 8, 1946, respectively, their continued
detention became illegal upon the exploration of six hours without their having been delivered to the
corresponding judicial authorities. (Article 125, Rev. Pen Code, as amended by Act No. 3940.) Their cases
were referred to the City Fiscal late in the afternoon of November 11, 1946, that is, four and three days,
respectively, after they were arrested. The illegally of their detention was not cured by the filing of
information against them, since no warrants of arrest or orders of commitment have been issued by the
municipal court to the hearing of this case before this Court.

It must be observed, in this connection, that in said informatons, the two petitioners are charged with light
offenses punishable by law with arresto mayor or an fine ranging from 5 to 200 pesos or both, according to
the second paragraphs of articles 151 and 287, respectively, of the Revised Penal Code. Under Rule 108,
section 10, when the offense charged is of that character, "the judge with whom the complaint or
information is filled, shall not issue any warrant for order for the arrest of the defendant, but shall order the
letter to appear on the day and hour fixed in the order to answer to the complaint of information," although
in particular instances he may also "order that a defendant charged with such offense be arrested and not
released except upon furnishing bail." The general rule, therefore, is that when the offense charged is light
the accused should not be arrested, except in particular instances when the court expressly so orders in the
experience of its discretion. In the instant case, the municipal court has not yet acted on the informations
nor exercised its discretion the arrest of the two petitioners and, therefore, they are still detained not
because of the informations filed against them but as a continuance of their illegal detention by the police
officers, While an arrest may be made without warrant there are reasonable grounds therefor (Rule 109,
section 6 Rules of Court), the prisoner cannot be retained beyond the period provided by law, unless a
warrant is procured from a competent court. (4 Am. Jur., p. 49; Diers v. Mallon, 46 Neb., 121; 50 Am. St.
Rep., 598; Burk v. Howley, 179 Penn., 539; 57 Am. St. Rep., 607; Karner v. Stump, 12 Tex. Civ. App., 460;
34 S. W., 656; Johnson v. Americus, 46 Ga., 80; Leger v. Warren, L. R. A., 216-281 [Bk. 51. ] It is obvious
in the instant case that the City Fiscal had no authority to issue warrants of arrest (vide authorities cited
above, and Hashim v. Boncan and City of Manila, 71 Phil., 216) and was powerless to validate such illegal
detention by merely filing informations or by any order of his own, either express or implied

It is not necessary now to determine whether the City Fiscal is a judicial authority within the purview of
article 125 of the Revised Penal Code, as amended by Act No. 3940, for even if he were, the petitioners
case was referred to him long after the expiration of the six hours provided by law. And since the City Fiscal,
unlike a judicial authority, has no power to order either the commitment or the release on bail of persons
charged with penal offenses (Adm. Code, section 2460), the petitioners further their confinement after their
case had been referred to the City Fiscal was but a mere continuation of their illegal detention by the police
officers. In the eyes of the law, therefore, these prisoners should have been out of prison long before the
informations were filed with the municipal court, and they should not be retained therein merely because of
the filing of such informations it appearing particularly that the offenses charged are light and are not, as a
general rule, grounds for arrest, under Rule 108, section 10. Under such circumstances, only an order of
commitment could legalize the prisoners continued confinement, and no such order has ever been issued.
Indeed, the municipal court could acquire jurisdiction over said prisoners only by the issuance of a warrant
of arrest, an order of commitment or a writ of summons as provided in the aforementioned rule.

We reiterate the minute-resolution above mentioned.

Paras, Feria, Pablo and Hilado, JJ., concur.

Moran, C.J., I certify that Mr. Justice Padilla concurred in this decision.
 Separate Opinions

PERFECTO, J., concurring: chanro b1es vi rt ual 1aw libra ry

The facts in this case can better be gathered from the pleadings. Copies of the petition and of the return the
latter with the annexes, accompany this opinion as appendices A and B. 1

At the hearing of this case, counsel of both parties disclosed the additional fact that the twelve detainees in
whose behalf these proceedings have been initiated after their arrest, were required to post a bail bond for
their provisional release of P12,000 each.

The petition was filed in the morning of November 11, 1946. The case was heard the next morning, and in
the evening of November 12, it was possible for this Court to obtain the necessary majority for the early
disposal of this case, with the result that the two remaining detainees were then immediately released. The
first ten were released by respondents in the very afternoon of the day when the petition was filed.

If we could ugly have our own way, we would have the case heard and disposed of in the very day the
petition was filed, by expediting the procedure in the same way as we did when we ordered the release
on habeas corpus of Special Prosecutor Liwag, in Tanada v. Quirino (42 Off. Gaz., 934). The Rules of Court,
which provide that the writ of habeas corpus may be issued at any hour in the day or at night, and the very
nature of the writ, make imperative the immediate disposal of cases like the present one, if the remedy is to
be effective and there is an earnest desire to avoid a failure of justice, especially as respondents are bent on
exerting all the power and ability at their command to mock at the action of the courts, as exemplified by
the case of Villavicencio v. Lukban (39 Phil., 778-812).

At the hearing of this case, our attention was called at the significant fact that petitioner himself, the ten
released detainees, and other persons who came to attend the hearing in this Court, were refused entrance
in the Malacanan compound where the building of the Supreme Court is located. They were allowed to come
in after we asserted that all the people are free to come to the Supreme Court which is an institution that
belongs to them.

The present case offers one of the most shocking examples of official disregard for fundamental human
rights, as guaranteed in our Constitution, and as is intended to be promoted and encouraged by the Charter
of the United Nations.

While Carlos P. Romulo, the eloquent spokesman of the Republic of the Philippines in the General Assembly
of the United Nations, is making world history with his courageous sponsorship of the independence of all
subjugated peoples and countries and is making for our Republic the proud record as one of the staunchest
champions of fundamental human rights, always placed in the forefront whenever there is a battle for
freedom, it seems paradoxical that here, in Manila, in the very heart of our country, in the nucleus of our
national culture, twelve humble, peaceful and law-abiding citizens, while in the peaceful exercise of their
constitutional rights of freedom of expression and to peaceably assemble, the right to enlist public support in
the pursuit of their right to a decent living wage, and the right to petition their own Government for the
redress of their grievances, are abruptly interrupted in the exercise of their rights and violently hauled into
prison as dangerous criminals.

Counsel for respondents tried to justify the unwarranted official invasion of private civil liberties by the
ignorance of erring officials of the constitutional Bill of Rights. Such ignorance does not justify anything. It
only aggravates the situation. It shows unpardonable dereliction of duty and recklessness of responsible
high authorities.

It is a universal rule that ignorance of the law does not exempt anyone from any responsibility for violating
it. Peace officers are duty bound to know the law. They are also known as law officers, because it is their
essential function to enforce the laws. They form part of the Executive Department of our Government, the
department whose primary function is to execute the laws. No peace officers should be allowed to enter in
the actual performance of his functions without first acquiring the indispensable knowledge of the laws they
are called upon to enforce. At least they ought to know the Constitution, a copy of which they should always
carry in their pockets for immediate consultation, with the same fidelity as the priests stick to their breviary
of prayers. They should be compelled to learn by heart the Bill of Rights, if possible, commit to memory all
its provisions. Peace officers are supposed, not only to enforce the laws, but also to protect the citizens in
their rights, and in order that they may perform this duty, they should first know what these rights are.
Without that knowledge, they become a menace to social order. If it is dangerous to let a person drive an
automobile when that person does not know how to drive it, it is no less dangerous to entrust the
enforcement of laws to armed individuals who are ignorant of them.

It has been alleged that the twelve detainees were not deprived of their personal liberty absolutely, because
they were allowed to enjoy provisional release upon a bail of P12,000 each. If they choose not to post said
bail, they cannot complain for having to remain in prison.

If the detention was illegal, and there is no doubt about it, respondents themselves admitting the illegality
as to the ten detainees they released before the hearing of this case, the fact that respondents required
them to post bail does not legalize their illegal detention. The bail requirement tends only to show
respondents stubbornness in insisting to enforce an illegal power to have the detainees under an
involuntary control.

But even in the false hypothesis that respondents could require the detainees to post bail for their
provisional release, the fact that respondents fixed the large amount of P12,000 for each, seems an
unbelievable sarcasm.

It is a fact that the twelve detainees joined the workers strike in a desperate endeavor to secure a decent
living wage. They went into strike because with what they were being paid for their daily labor they had not
enough to make both ends meet. At the time of their arrest, they were not even earning the insufficient
salary or wage against which they were protesting by means of strike. If those persons were not earning
enough to live as decent human beings, and at the time of their detention they were not receiving even the
miserable pittance they were complaining of, is it not an insulting joke to require them to raise each
P12,000 for bail, an amount, which even we, the members of the Supreme Court, occupying the highest
ranks in our judicial system, and receiving the highest salary allowed by law to a judicial officer, could not
raise with the urgency required by the situation of a man who is deprived of his personal freedom?

It is also alleged that the officers who arrested the detainees believe that the latter committed sedition.
Respondents themselves confess that the detainees did not commit such crime. Sedition is the crime usually
resorted to by tyrants as a pretext to silence or suppress those persons who have the firmness of character
to oppose them and expose their abuses. Socrates was sentenced to drink hemlock for the sedition of giving
freedom and wings to the Greek thought in his painstaking philosophical search for truth. Because he
preached the gospel of human brotherhood, Jesus was crucified for sedition.

The tyrants of one-fourth of a century ago, who controlled the situation in the Philippines tyrants are wild
animals that may appear in any country following the foot-steps of their predecessors in other places,
tried to smash the crusade for clean government, which was our lot to wage in one of the newspapers of
Manila, by prosecuting us for the crime of sedition. (United States v. Perfecto and Mendoza, 43 Phil., 58, 62-
64.) The following paragraphs in the decision of the Supreme Court in that case, seem to us to ring with
trenchant actuality:jgc:chanro bles. com.ph

"When the citizens of a state become convinced that the administration of the affairs of their government is
not carried on in accordance with the law, or is not conducted for the best interest of all concerned, they
have not only a right but it is their duty to present the cause of their grievances to the public, and the free
press of the state usual]y affords the best avenue for that purpose. To that end, the organic laws of all
modern free states have wisely provided that no law shall be passed, abridging the freedom of the press and
that no person shall be punished except for an abuse of that freedom. The interest of civilized society and
the maintenance of good government demand a full and free discussion of all affairs of public interest.
Complete liberty to comment upon the administration of the Government, as well as the conduct of public
men, is necessary for free speech. The people are not obliged under modern civilized governments, to speak
of the conduct of their officials, of their servants, in whispers or with bated breath. (United States v. Bustos,
37 Phil., 731.)

"The right to assemble and petition the Government, and to make requests and demands upon public
officials, is a necessary consequence of republican and democratic institutions, and the complement of the
right of free speech. (United States v. Bustos, supra.)

"The freedom of the press consists in the right to publish the truth, with good motives and for justifiable
ends, although said publication may be offensive to the Government, to the courts, or to individuals.

"Chief Justice Marshall of the Supreme Court of the United States, in discussing the freedom of the press,
said: The spirit of the constitution and the opinion of the people cannot be curbed by those who administer
the Government. Among those principles which are held most sacred by the people of America, there is
none more deeply rooted in the public mind than that of the liberty of the press.

"Mr. Daniel Webster had occasion to discuss the same question. He said: It is important to safeguard to the
utmost the right to free speech and the free press. It is the ancient and constitutional right of our people to
judge public matters and public men. It is such a self-evident right as the right to breathe the air and to
walk on the surface of the earth. I will defend this high constitutional prerogative in time of war, in time of
peace, and all the time. Dead or alive I shall maintain it.

It is the particular duty of the people of the state to zealously maintain the right to express freely, either
verbally or by publication, their honest convictions regarding the acts of public officials and the governing
class. If the people of a free state should give up the right of free speech; if they are daunted by fear and
threats, and abdicate their convictions; if the governing body of the state could silence all the voices except
those that extol their acts; if nothing relating to the conduct of the governing class can reach the people
except that which will uphold the men in power, then we may well say Good-bye to our liberties forever.
While under such circumstances free governments may still be maintained, their life, their soul, and their
essentials will be gone. If the publication of the conduct of public officials annoys them, let them examine
their own act and determine the fundamental cause of the complaint. Even during the time of the illustrious
Voltaire, he expressed the upon on that tolerance was never the cause of internal strife in the state, but, on
the contrary, the pursuit of intolerance has covered the world with blood. The tyrants of our thoughts have
caused the greater part of the misfortunes of the world.

"Mr. Ralph Waldo Emerson in discussing the question before us, said: If there were a country where
knowledge could not be spread without incurring the penalty of the law; where there is no free speech,
where correspondence and publicity are violated, that country would not be civilized, but it would be
barbarous.

"Mr. Henry Ward Beecher on one occasion said: The term "free" is akin to the wind that blows over the
regions infected with malaria and exposes to the light the germs of the disease. When the freedom of
speech is curtailed, infection sets in and death quickly follows."
cralaw vi rtua 1aw lib rary

Our schoolboys are no more compelled to count "Ichi, ni, san, si," to sing "Hamabe No Uta," to salute
"ohayoo," or "kombanwa," or to intersperse their talk with "arigatoo" or "sayoonara." No more lecturer is
teaching us the "tyu no yu" and flower arrangement as the highest expressions of culture. The political
philosophy of "Daitoa Kyoeiken" (Greater East Asia Co-Prosperity Sphere, under the Japanese hegemony)
has banished as unwanted nightmare. The voice of the Nippon geo-politicians preaching "Hakko Ichiu," the
Emperors way, the universal brotherhood under the benevolent guidance of the direct descendant of
Amaterasu Omikami, we do not hear any more. The bowlegged and be worded samurai successors,
indoctrinated in the traditions of Bushido knighthood, ceased to plunder, to rape, and to cut throats in our
midst. Our sleep is no more disturbed by the hobnailed terror stalking in our sidewalks at midnight. The
public bowing to brutal sentries, and by high officials and employees of the government towards the
Imperial Palace at Tokyo, are no more. But it seems, as exemplified in this case, that the feudalistic ideology
behind all occupation facts and acts has left its pernicious virus in our soil.

The wanton disregard shown by those responsible for the arrest to the rights of the twelve detainees, those
rights being among the fundamental ones guaranteed by the constitution, cannot be explained otherwise.

There was absolutely no legal ground to disturb or obstruct the twelve detainees in their absolutely lawful
and peaceful activities, and much less to deprive them of their personal freedom and then keep them in jail
for an indefinite period of time, only interrupted upon the filing of a petition for a writ of habeas corpusin
this case.

It is our opinion that those government officers who are responsible for the detention and confinement of
the twelve detainees, depriving them of personal liberty without due process of law, as guaranteed by the
Constitution, are liable for prosecution under article 124 of the Revised Penal Code which provides as
follows: jgc:c hanrobles. com.ph

"Arbitrary detention. Any public officer or employee who, without legal grounds, detains a person, shall
suffer:
jgc:chan roble s.com.p h

"1. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the
detention has not exceeded three days;

"2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued
more than three but not more than fifteen days;

"3. The penalty of prision mayor, if the detention has continued for more than fifteen days but not more
than six months; and

"4. That of reclusion temporal, if the detention shall have exceeded six months.

"The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement
of the patient in a hospital, shall be considered legal grounds for the detention of any person." cralaw virt ua1aw li bra ry

But even if the detention in question was made "for some legal ground, a conjecture in support of which no
sufficient ground appears in this case, still those who made the arrest are liable for prosecution under article
125 of the Revised Penal Code, because they failed to deliver the twelve detainees to the proper judicial
authorities within the period of six hours after detention. Said article is as follows:
jgc:chan rob les.com. ph

"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 to the proper judicial authorities within the period of
six hours." (As amended by Com. Act No. 3940.)

The idea of prosecuting them under the above cited articles of the Revised Penal Code may appear to be
hard, but we must not forget that "dura lex, sed lex" and whatever may be the consequences the law must
be given its way.

We can imagine how the erring officials will feel at the prospective prosecution and how they might consider
unbearable the idea of being sent to jail, but was it sweet or delicious for the twelve detainees to be illegally
deprived of their freedom and confined in prison for so many days and nights, without any fault on their part
at all? If respondents are zealous in keeping their own personal freedom, they cannot deny the victims of
their recklessness the same legitimate desire.

Everybody can imagine the indescribable physical, mental, and moral sufferings endured by the twelve
detainees and their respective families. The indignation felt by one who is the victim of an unjustifiable
onslaught upon his individual dignity, the paralyzing anguish of the down-trodden who feels overwhelmed by
brutal superior force against which his weakness cannot offer but the answer of futile despair, the
excruciating thought of the alarm their absence will produce in their humble little homes, where their
unprotected wives will try to drown their worries in bitter tears, while their little ones are trying to
understand in infantile amazement the absence of their father and the tragedy entailed by that absence, are
things that can hardly be attenuated by the thought that, after all, the Nippon kempei has already banished
as an asphyxiating dream, and the unfortunate situation cannot be as bad as the sadistic and bestial horrors
that the very mention of Fort Santiago conjure in our imagination, the linear memory of which produces
thick sweat and blood consolation. There is no treasure in the world that can adequately compensate such
sufferings. The only consolation that the situation may offer is the bereft hope that such sufferings may
have the effect of awakening the conscience of our public officials so as to induce them to make the firm
resolve to avoid the repetition of such abuses as the ones depicted in this case, that the guilty ones will
earnestly repent of their misdeeds and will henceforth endeavor to accord the proper regard to the rights
and liberties of their fellow human beings, thus contributing to diminish so many rampant manifestations of
moral disorientation, including attempts to degrade the highest tribunal of the country, that now offend the
good sense of the average citizen.

The provisions of law punishing arbitrary or illegal detention committed by government officers form part of
our statute books even before the advent of American sovereignty in our country. Those provisions were
already in effect during the Spanish regime; they remained in effect under American rule; continued in
effect nuclear the Commonwealth. Even under the Japanese regime they were not repealed. The same
provisions continue in the statute books of the free and sovereign Republic of the Philippines. This
notwithstanding, and the complaints often heard of violations of said provisions, it is very seldom that
prosecutions under them have been instituted due to the fact that the erring individuals happened to belong
to the same government to which the prosecuting officers belong. It is high time that every one must do his
duty, without fear or favor, and that prosecuting officers should not answer with cold shrugging of the
shoulders the complaints of the victims of arbitrary or illegal detention.
Only by an earnest enforcement of the provisions of articles 124 and 125 of the Revised Penal Code will it be
possible to reduce to its minimum such wanton trampling of personal freedom as depicted in this case. The
responsible officials should be prosecuted, without prejudice to the detainees right to the indemnity to
which they may be entitled for the unjustified violation of their fundamental rights.

The question of economic rehabilitation of our country is an everyday topic in the newspapers. We deem
more important still the moral rehabilitation of our people; especially that of the officialdom. The
Constitution requires (section 5, Article 14) that "All schools shall aim to develop moral character, personal
discipline, civic conscience, and vocational efficiency and to teach the duties of citizenship," and it will be
highly desirable that this mandate should be borne in mind by all officers of the government, and that the
qualities the Constitution ordains to be developed in all citizens should be, with more emphasis, required
from officials and employees of the government, thus correcting the negative tropism shown in this case in
regard to fundamental civil liberties.

The filing of information for insignificant misdemeanors against Pascual Montaniel and Pacifico Deoduco
appears to us as a poor face-saving device to justify, in some way, their further detention, and should not
be countenanced as a means to defeat the release of said two detainees.

In explaining in this concurring opinion, our position in voting in favor of the resolution of November 12,
1946, we wish to make it clear that we do not interpret article 126 of the Revised Penal Code as legalizing
detentions not exceeding six hours. Said article does not legalize an illegal detention. It only offers a
justifying circumstance which exempts the erring official from criminal prosecution, provided that the
detention is made upon legal grounds and do not last more than six hours, but it will, and cannot, defeat a
petition for a writ of habeas corpus in behalf of a person illegally detained although the petition is filed
before the termination of the six hours period mentioned in the article, as the constitutional guarantee of
personal freedom is not subject to any time limit.

We wish to emphasize that it is highly dangerous to make of the fundamental rights of the citizens a kind of
shuttlecock of passing moods or momentary whims of persons wielding some kind of government power.
When the estrous of official intolerance and braggadocio employed to cow into submission the twelve
detainees has subsided, everybody will recognize in the cool and serene recesses of their conscience, that
those who, under the pretext of subduing allegedly seditious persons; committed the arbitrariness
complained of in the petition, trod a perilous path that, as shown by the experience of other countries,
usually lead to the implantation of a dictatorship, whose whole philosophy is built upon the hateful slogan
that everything, including the most cherished possessions and the most blessed ideals of the people, should
be sacrificed for the sale of the state supremacy.

We are glad that two civic-minded groups of citizens, the Philippine Civil Liberties Union and the Philippine
Lawyers Guild, have taken pains to appear in this Court in behalf of the twelve detainees, and we
congratulate them for the success of their endeavors.

By actual personal experience and upon conclusive evidence, we know that it is not enough that the civil
liberties and fundamental] human rights be guaranteed in express constitutional provisions in order that
they should effectively be protected. Eternal vigilance and constant willingness and readiness to fight for
them are necessary.

When World War I was nearing its end, in the exercise of the freedom of the press, guaranteed by the Jones
Law, as Editor of La Nacion, we made exposures of many unsatisfactory aspects of public affairs as they
were then conducted. We made revelations regarding the scandals of the Philippine National Bank which
caused many millions of losses to our Government. The powerful wanted us to be silenced. The Governor
General, first through his Secretary, Mr. Irwin, and later through General Crime, Chief of the Philippine
Constabulary, tried to intimidate us with drastic action by the Government if we should not stop the
publication of the irregularities and illegalities we were denouncing then in the columns of our paper. They
reminded us that the war justified any extraordinary measure by the Government, and that our
denunciations, by tending to destroy public confidence in the authorities, were highly seditious. Our
invariable answer to Mr. Irwin and General Crime was that the Governor General and they themselves were
free to do what it would please them, but nothing shall deter us from doing what, according to our
conscience, was our public duty. As we did not allow ourselves to be intimidated, a series of criminal
prosecutions were instituted against us. Although the lower courts should invariably find us guilty, the
Supreme Court had always acquitted us, by upholding the freedom of the press.
The existence of liberal elements, always watchful and ready to defend the victims of violations of the Bill of
Rights, is necessary to vitalize democracy and to give tangible reality to the guarantees of the Constitution.
The fight for personal freedom must go on, over and over again, as the forces of reaction are always ready
to snatch any opportunity to set at naught the guarantees of the fundamental law, as happened in the bail
incident in People v. Jalandoni (G.R. No. L-777), and all liberal forces must always be ready to answer the
summons of endangered liberties.

The attainment of great ideals needs faith, passionate adherence to them, the militant attitude manifested in
the unflinching readiness to fight and fact hardships and sacrifices, unconquerable steadfastness and
unbreakable per severance in the face of obstacles and setbacks. These are the conditions and qualities with
which thinkers and philosophers were able to discover the truth which have guided humanity as beacons in
the path of progress; the founders of great religions, to transmit to millions their message of hope and the
gospel of eternal moral principles: Columbus, to discover the New World, and Magellan to traverse the two
largest oceans and encircle the globe; astronomers, to pierce the immensity of space to conquer new stars,
parsecs away; bacteriologists, to scavenge dangerous micro-organisms; scientists, to for sick in the
mysteries of matter to wrest new revelations which enhance the intellectual horizon of man and increase his
means for enjoyment of life and happiness. The same conditions and qualities are among those needed by
all liberal and progressive spirits to keep lighted the torch of liberty, to squelch the hydra of reaction, to
conserve the moral heritage of advancement and conquests in the emporium of human rights bequeathed
by the champions and martyrs who waged the heroic battles for real spiritual values and for the dignity of
man as the image of God.

Appendix A

PETITION

Petitioner Cecilio M. Lino, through his undersigned counsel, respectfully alleges: chan rob1es v irt ual 1aw l ibra ry

1. That the petitioner is of legal age and a resident of the City of Manila, Philippines; the respondent
Valeriano E. Fugoso is the Mayor of the City of Manila; the respondent Lamberto T. Javalera is the Chief of
Police of the said City; and the respondent John Doe is the Officer in Charge of the Municipal Jail of the same
City;

2. That the petitioner is the President of the City Employees and Workers Union, Congress of Labor
Organization (CLO), duly registered as a labor organization under the provisions of Commonwealth Act No.
213; and he files this petition on behalf of the following persons, members of the said labor organization,
who are imprisoned and deprived of their liberty, to wit:

1. Ricardo Suarez (Juarez)

2. Gregorio Santiago

3. Ismael de Jesus

4. Serafin Pascual

5. Amado Racanday

6. Antonio Bulagda (Burlagada)

7. Mauro Fernandez

8. Jose Badeo

9. Francisco Nevado (Lebado)

10. Pascual Montaniel

11. Pedro Martinez and

12. Pacifico Deoduco;

3. That, within the time comprised between November 5 and November 8, 1946, the persons above named
were arrested without warrant and without lawful cause, upon order of the respondent Valeriano E. Fugoso,
as Mayor of the City of Manila, by members of the Police Department of the said City, of which the
respondent Lamberto T. Javalera is the Chief, and, immediately thereafter, were taken to, and detained at,
the Municipal Jail of the aforementioned City, of which the respondent John Doe is the Officer in Charge;

4. That since their arrest all the persons mentioned in paragraph 2 heir of have been detained and deprived
of their liberty by the respondents at the said Municipal Jail, although no charges have been filed against
any of the above mentioned persons in any lawful court, nor has any judicial or other proper authority
issued any order authorizing their continued detention, and notwithstanding the lapse of the period of six
hours from the time of their arrest and/or commitment;

5. That the aforementioned persons were arrested while in the peaceful exercise of their constitutional rights
of freedom of speech and of the press and peaceably to assemble and petition the Government for the
redress of their grievances, specifically, while performing the following acts to enlist public support in the
pursuit of their right to a living wage, to wit:
chanrob 1es vi rtua l 1aw lib rary

(a) Ricardo Suarez (Juarez), Gregorio Santiago, Ismael de Jesus and Serafin Pascual arrested on
November 5, 1946 at Pinkian Street, Tondo, Manila, for no apparent reason, but for posting a distributing
handbills explaining the plight of the city laborers on strike, and appealing to and for the sympathy and
lawful support of the public;

(b) Amado Racanday, Antonio Bulgada (Burlagada) and Mauro Fernandez arrested on November 6, 1946,
while standing at the corner of Gral. Luna and California streets, Paco, Manila, for no apparent reason,
except that they had joined the city laborers strike, and for having in their possession some copies of the
handbills above mentioned;

(c) Jose Badeo and Francisso Nevado (Lebado) arrested on November 6, 1946, while standing at the
corner of Perez and California Streets, Paco, Manila, for no apparent reason except that they had joined the
city laborers strike and had in their possession a notice of a meeting of their labor organization;

(d) Pascual Montaniel arrested on November 8, 1946, at Cristobal Street, Paco, Manila, for no apparent
reason, except that the made a friendly greeting to a non-striker;

(e) Pedro Martinez arrested on November 8, 1946, at Juan Luna Street, Gagalangin, Manila, for no
apparent reason, except that he had joined the city laborers strike and walked along the street with a paper
band strung diagonally from his shoulder around his body bearing the following words: "Damayan Kami !
Huag Mageskirol" (Help us! Do not be a scab); and

(f) Pacifico Deoduco arrested on November 7, 1946, at Cristobal Street, Manila, for no apparent reason
except that he had joined the city laborers strike.

Wherefore, petitioner prays that a writ of habeas corpus be directed forthwith to the respondents
commanding them, or any of them, to have the bodies of the above named persons who are restrained and
deprived of their liberty before this Honorable Court at a time and place to be designated by this Court; and,
after due hearing, forthwith to order their discharge from confinement, with costs against the respondents.

Manila, Philippines, November 11th, 1946.

Emmanuel Pelaez,

Francisco A. Rodrigo

Enrique M. Fernando

Manuel M. Crudo

Claudio Teehankee and

Jose W. Diokno
By: (Sgd.) Emmanuel By: (Sgd.) Claudio Tee

Pelaez Counsel for the Peti hankee Counsel for the Pe-

tioner C/o Philippine Civil titioner C/o Philippine Law-

Liberties Union 503 China yers Guild, 319 Lardizabal

Bank Building, Dasmarinas, Street, Manila

Manila

VERIFICATION

Cecilio M. Lino, of legal age, after being duly sworn in accordance with law, deposes and says: chanrob1es vi rtua l 1aw lib ra ry

1. That he is the petitioner in the foregoing petition for a writ of habeas corpus;

2. That he caused the same to be prepared and presented; and

3. That all the facts therein alleged are true and correct.

Further affiant seethe naught.

Manila, November 11, 1946.

(Sgd.) Cecilio M. Lino

Affiant

Subscribed and sworn to before me this 11th day of November, 1946, at the City of Manila, Philippines. The
affiant exhibited to me his Residence Certificate No. A-20721, issued at the City of Manila, on January 9,
1946.

(Sgd.) F. A. Rodrigo

Notary Public

Until December 31 1947

Doc. No. 36

Page No. 9

Book No. 1

Series of 1946.

Appendix B

RETURN OF WRIT

Come now the respondents in the above-entitled case, Valeriano E. Fugoso, Lamberto T. Javalera and John
Doe, in their respective capacities as Mayor, Chief of Police and Officer in Charge of the Municipal Jail, all of
the City of Manila, through their counsel, the undersigned City Fiscal, and in making their return to the
petition filed herein, to this Honorable Court respectfully allege:c hanrob1es vi rt ual 1aw li bra ry

1. That they admit the allegations contained in paragraphs 1 and 2 of said petition.

2. That they admit the fact, stated in paragraph 3 of said petition, regarding the arrest of the persons whose
names are listed in paragraph 2 thereof, without warrant, by members of the Manila Police Department, and
their detention until yesterday, November 11, 1946, at the Municipal Jail of the City of Manila; but they deny
the rest of the allegations, especially that which states for a fact that said detained persons were arrested
without lawful cause upon order of the respondent Valeriano E. Fugoso, as Mayor of the City of Manila, the
truth of the matter being that the arrest was lawful, it having been made by members of the Manila Police
Department duly appointed and qualified as such who acted in the performance of their official duties, and
acting in the belief that the said detained persons, before or at the time of their arrest, were committing
acts in violation of the laws of the land.

3. That they admit the fact, alleged in paragraph 4 of said petition, that all the arrested persons have been
placed under detention until yesterday, November 11, 1946, at the Municipal Jail of the City of Manila; but
they deny the rest of the allegations, specially that part which says that no charges have been filed against
them notwithstanding the lapse of the period of six hours from the time of their arrest and commitment, the
truth of the matter being that charges for inciting to sedition, disobedience to police orders and resisting
arrest have been filed against them by the arresting police officers with the Office of the City Fiscal which
has conducted the preliminary investigation of said cases in accordance with law.

4. That they deny the allegations contained in paragraph 5 of said petition, the same being merely
conclusions of facts and/or of law.

As special defenses, respondents hereby allege: chan rob1e s virtual 1aw lib rary

(a) That all of the twelve detained persons were arrested by police officers for acts which the arresting
officers believed to constitute inciting to sedition, resisting arrest and disobedience to police orders, filing
the corresponding cases against them with the Office of the City Fiscal immediately thereafter.

(b) That yesterday, November 11, 1946, before and after the receipt by them of their respective copies of
the petition for habeas corpus herein filed, complaints had already been presented with the Municipal Court
of Manila against Pascual Montaniel and Pacifico Deoduco not for inciting to sedition but for unjust vexation
and for disobedience to police orders, respectively, the same being criminal cases Nos. 6765 and 7666 of
the Municipal Court of Manila, copies of which complaints are being attached hereto and made a part hereof
as Annexes 1 and 2.

(c) That likewise, before and after the receipt by them of their respective copies of the petition for habeas
corpus, said respondents Valeriano E. Fugoso and Lamberto T. Javalera had already been notified of the
dismissal by the Office of the City Fiscal of the cases for inciting to sedition against all the detained persons,
for insufficiency of evidence, and of filing in the Municipal Court of Manila complaints against Pascual
Montaniel and Pacifico Deoduco, as aforesaid.

(d) That, similarly, before and after his receipt of a copy of the petition for habeas corpus, the respondent
John Doe, in his capacity as Officer in charge of the Municipal Jail, had received from the City Fiscal letters
bearing date of November 11, 1946, copies of which are hereto attached as Annexes 3 and 4 of this Return,
wherein he was advised that the cases against said detained persons for inciting to sedition have been
dismissed for insufficiency of evidence, but that complaints were being filed against Pascual Montaniel and
Pacifico Deoduco for unjust vexation and for disobedience to police orders, respectively, and wherein said
respondent John Doe has been ordered by the City Fiscal to forthwith release all of said detained persons
with the exception of Pascual Montaniel and Pacifico Diodoco, an order which has been complied with by said
respondent John Doe as shown by the fact that said detained persons, with the exception of the latter two,
had forthwith been released from custody.

(e) That Pascual Montaniel and Pacifico Deoduco continue to be detained and are being deprived of their
liberty not without lawful cause, for the reason that there are at present pending against them criminal
complaints with the Municipal Court of Manila for unjust vexation and disobedience to police orders as stated
above.

Wherefore, respondents herein pray this Honorable Court to dismiss the petition, with costs against the
petitioner.

Manila, November 12, 1946.

(Sgd.) JOSE P. BENGZON

City Fiscal
Annex 1

INFORMATION

The undersigned accuses Pascual Montaniel y Avelar of the crime unjust vexation, committed as follows: chan rob1e s virtual 1aw lib rary

That on or about the 8th of November, 1946, in the City of Manila, Philippines, the said accused did then
and there willfully, unlawfully, feloniously and on justly vex and annoy one Jesus Cambare, who was then a
driver at the City Motor Pool assigned to the Department of En Fingering and Public Works of the
Government of the City of Manila, while in the act of managing, driving and operating a jeep being used by
the Assistant City Engineer of said City in the latters official capacity, by then and there stopping the jeep
driven by said Jesus Cambare without any just cause therefor and telling him to stop driving for the City of
Manila while the strike of city laborers was still going on, all in a threatening attitude, and to the great
disgust and annoyance of the aforementioned Jesus Cambare. Contrary to law.

(Sgd.) JULIO VILLAMOR

Assistant Fiscal

Witnesses: chan rob 1es vi rtual 1aw lib rary

Jesus Cambare 615 Merced, Paco

Dets. Felix T. Pineda and

Victoriano Antonio Det. Bureau

Chief Clerk Dept. of Engineering and

Public Works, City Hall (bringing records re

appointment of Jesus Cambare as driver at the

City Motor Pool)

Annex 2

INFORMATION

The undersigned accuses Pacifico Deoduco of a violation of the second paragraph of Art. ell of the Revised
Penal Code, committed as follows: c hanro b1es vi rtua l 1aw li bra ry

That on or about the 7th day of November, 1946, in the City of Manila. Philippines, the said accused did then
and there willfully, unlawfully and feloniously disobey Vicente Cararidad, a duly appointed and qualified
police officer of the City of Manila and, therefore, an agent of a person in authority, while the latter was
acting in the performance of his official duties, to wit: while he was guarding the premises of the City Motor
Pool on Cristobal St., in said City, which acts of disobedience was in the following manner: That said
accused, having entered and was actually found in the aforesaid premises where he had no right to be,
without the knowledge and consent of the authorities concerned, and having been ordered several times by
the aforesaid police officer to go out of and leave the said premises, defiantly and persistently refused to do
so, but instead he continued to remain therein. Contrary to law.

(Sgd.) JULIO VILLAMOR

Assistant City Fiscal

November 11, 1946

Witnesses: chan rob 1es vi rtual 1aw lib rary

Pat. V. Cararidad, Precinct No. 3.

Pat. Pedro Camata, Precinct No. 3.

Chief Clerk, Manila Police Dept., to bring a certified

copy of the latest appointment of Pat. Vicente Cele-

ridad of the Manila Police Dept.

Bail recommended: P200

Annex 3

November 11, 1946

The Prison Officer

City Jail, Manila

Sir:
chan rob1e s virtual 1aw l ibra ry

With reference to the case of inciting to sedition presented with this Office against (1) Ricardo Suarez, (2)
Gregorio Santiago (3) Ismael de Jesus, (4) Serafin Pascual, (5) Amado Racanday, (6) Antonio Bulagua
(Burlagua), (7) Mauro Fernandez, (8) Jose Radeo, (9) Francisco Navado (Levado), (10) Pascual Montaniel,
and (11) Pedro Martinez, please be informed that after an investigation has been conducted in the premises,
it was found out that there is no sufficient evidence to warrant the prosecution of said accused in court, it
appearing that the leaflets, posters and other propaganda sheets which said accused distributed to the
public and pasted or posted at different places within the city, did not contain any statement or phrases of
seditious nature or of the nature to incite to the commission of sedition. This Office, however, is filing a
complaint with the Municipal Court against Pascual Montaniel y Avelar for unjust vexation only, wherein a
bail of P100 has been recommended for his temporary release.

In view of the foregoing, all of the said accused, except Pascual Montaniel y Avelar, should be released from
custody or their bonds cancelled, if any have been put up for their temporary release unless they are held
on other charges.

Respectfully,

(Sgd.) JOSE P. BENGZON

City Fiscal

ANNEX

November 11, 1946

Prison Officer

City Jail, Manila

Sir:
chan rob1e s virtual 1aw l ibra ry

With reference to the cases of disobedience to the Police and resisting arrest presented to this Office against
Pacifico Deoduco y Docio, please be informed that after an investigation has been conducted in the
premises, it was found out that there is no sufficient evidence to warrant his prosecution in court for the
offense of resisting arrest. This Office, however, is filing today a complaint the Municipal Court against the
said accused for disobedience to an agent of a person in authority, under the second paragraph of Art. 151
of the Revised Penal Code, wherein a bail of P200.00 has been recommended for his temporary release.

Very respectfully,

(Sgd.) Jose P. Bengzon

City Fiscal

BRIONES, M., conforme: chanrob 1es vi rtual 1aw lib rary

El presente caso es un incidente de la famosa huelga decrada y efectuada en Noviembre del alio pasado
(1946) por obreros organizados de la ciudad de Manila en el servicio municipal de limpieza de calles y en
obras publicas tambien municipales. Como fondo historico del caso en general, y de esta opinion en
particular, cabe incluir en la naracion de hechos el de que como es acostumbrado en este genero de
convulsiones sociales despues de mucho apasionamiento por ambos lados, de no poca nerviosidad y de
laboriosas negociaciones, la huelga que duro unas dos semanas quedo satisfactoriamente solucionada,
aviniendose los huelguistas a volver a su trabajo a cambio de ciertas concesiones que hizo el Municipio de
Manila, particularmen te en la cuestion de bonificaciones y salarios. Sin embargo esulta de autos y de la
historia el dia reflejada princi palmente en la prensa (de lo cual podemos naturalmente tomar conocimiento
judicial) que la exaltacion de los animos, la pasion al rojo vivo produjeron algunos incidentes, unos
dramaticos, otros comicos, llegando la tension nerviosa de algunos a exagerar tremendamente las
proporciones del movimiente hasta el estremo de imaginarse rebeliones y sediciones alli donde no habia sino
un espiritu algun tanto militante de parte de los abreros en la defensa de sus derechos e intereses y en la
propaganda de su causaa con la mira de ganarse la simpatia del publico. Uno de esos incidentes es la cogida
o aprehension por la policia, sin previa orden de arresto, por el especioso pretexto de estaban incitanto y
promoviendo nada menos que una sedicion contra el gobierno constituido, de doce obreros huelgistas,
confinandoseles en la carcel por dicho motivo.

En no, bre de esos doce se ha presentado esta solicitud de mandamiento de habeas corpus por Cecilio M.
Lino, presidente de la Union de Empleados y Obreros de la Ciudad, filial del "Congress of Labor
Organizations" (CLO), defendiendoles como abogados Emmanuel Palaez, Francisco A. Rodrigo y Enrique M.
Fernando, miembros y representantes de la sociedad civia "Philippine Civil Liberties Union," y Manuel M.
Crudo, Claudio Teehankee y Jose W. Diokno, mienbros, y representantes del "Philippine Lawyers Guild." En
nombre de los recurridos ha comparecido ante esta Corte el Fiscal auxiliar Julio Villamor, de la ciudad de
Manila.

Alegase en la solicitud que doce obreros de que se trata fueron arretados mientras estaban ejerciendo
pacificamente sus derechos constitucionales, a saber: la libertad de la palabra y de la prensa, y el de
reunion pacifica para pedir del gobierno el alvio de sus agravios. Se detalla especificamente los actos en que
estaban ocupados cuando fueron arretados, a saber: chan rob1es v irt ual 1aw l ibra ry

(a) Richard Suarez (Juarez), Gregorio Santiago, Ismael de Jesus y Serafin Pascual fueron arrestados el 5 de
Noviembre, 1946, en la calle de Pinkian, arrabal de Tondo, Manila, Mientras estaban distribuyendo y
pegando en las parades hojas voluntes en que se explicaban las miserias y tribulaciones de los obreros en
huelga se apelaba a la simpatia y sentimientos humanitarios del publico para que apoyara la causa de los
huelguistas.

(b) Amando Racanday, Antonio Bulagada (Burlagada) y Mauro Fernandez fueron arrestados el 6 de
Noviembre, 1946, mientras estaban tranquilamente parados en la esquina de las calles de California y Gral.
Luna, Paco, Manila, y sin ningun motivo aparente como no fuese el de que se habian adherido a la huelga y
se hallaron en su posesion copias de las hojas volantes menciondas en el parrafo anterior.

(c) Jose Badeo y Francisco Nevado (Levado) fueron arrestados el 6 de Noviembre, 1946, mientras estaban
tranquilamente parados en la esquina de las calles de Perez y California, Paco, Manila, y tambien sin ningun
motivo manifiesto como no fuese el de que se habian adherido igualmente a la huelga y tenian en su poder
el aviso de una reunion que la organizacion obrera a que estaban afiliados iba a celebrar.

(d) Pedro Martinez fue arrestado el 8 de Noviembre, 1946, en la calle de Juan Luna, Gagalangin, Manila, y
sin ninguna razon aparente excepto que el mismo se habia adherido a la huelga y andaba paseandose a lo
largo de dicha calle con una banda llamativa que llevaba diagonalmente alrededor de su cuerpo y en la cual
estaban escritas las siguientes palabras en tagalo: DAMAYAN KAMI, HUAG MAG-ISKIROL! (Help us! Dont
be a scab. Ayudadnos! !No seais desertores!)

(e) Pascual Montaniel fue arrestado el 8 de Noviembre, 1946, en la calle de Cristobal, Paco, Manila, sin
ningun motivo aparente como no fuese el de que habia saludado amistosamente a uno que no era
huelguista.
(f) Pacifico Deoduco fue arrestado el 7 de Noviembre 1946, en la citada calle de Cristobal tambien sin razon
manifiesta excepto que se habia adherido a la huelga.

Se puso de manifiesto en la audiencia, en los informes orales producidos por las partes, que los obreros
arriba mencionados fueron recluidos en los calabozos desde que fueron arrestados hasta que, por
recomendacion del Promotor Fiscal de la Ciudad, la Policia los puso en libertad, menos Montaniel y Deoduco,
a las tres y media de la tarde del 11 Noviembre, por haberse hallado, segun la carta de dicho Fiscal al oficial
de las prisiones de Manila, "que no hay prueba suficiente para justificar la prosecucion de dichos acusados
ante los tribunales, apareciendo que las hojas volantes, manifiestos y otras hojas de propaganda que tales
acusados distribuyeron entre el publico y exhibieron o fijaron en diferentes lugares dentro de la ciudad, no
contenian ninguna frase o expresion de caracter sedicioso o de tal naturaleza que incitase la comision del
delito de se dicion" (Carta del Fiscal de la Ciudad de Manila, Jose P. Bengzon, de 11 de Noviembre de 1946,
al oficial de las prisiones de la ciudad, anexo 3). Se ordeno, sin embargo, la continuacion de la detencion de
Montaniel y Deoduco, a pesar de que tampoco habia pruebas de sedicion contra ellos, porque la Fiscalia
decidio a ultima hora presentar querellas, a saber: (a) contra Montaniel, por supuesta vejacion injusta,
alegandose que el 8 de Noviembre, mientras Jesus Cambare guiaba y manejaba un "jeep" de la oficina del
Ingeniero de la ciudad, Montaniel trato de pararle diciendole que dejase de guiar al servicio de la ciudad de
Manila mientras durase la huelga, "con gran disgusto y molestia de dicho Jesus Cambare" ; (b) contra
Deoduco, por supuesta desobediencia a un policia, alegandose en la querella que el 7 de Noviembre, 1946,
el acusado entro sin permiso en el deposito de vehiculos de motor (motor pool) de la ciudad situado en la
calle de Cristobal, Paco, y que cuando el policia de guardia, Vicente Caridad, le intimido que saliera del
lugar, dicho acusado persistio en quedarse dsobedeciendo asi al policia.

Al llegar a este punto parece importante, y hasta necesario, fijar especificamente el tiempo en que tuvieron
lugal ciertcs acaecimientos y tramites. Esto nos servira para poner de relieve ciertos hechos capitales y
ciertos puntos en contencion, y evaluarlos en toda su densidad. De autos e informes resultan los siguientes
hechos: (a) que la presente solicitud de habeas corpus se presento y registro en la escribania de esta Corte
el 11 de Noviembre, 1946, a las 9 de la manana poco mas o menos; (b) que el recurrido Alcalde Valeriano
E. Fugoso fue emplazado de la solicitud en aquella misma manana, a las 11:20; (c) que el recurrido jefe de
policia Lamberto Javalera tambien fue emplazado de la solicitud en aquella misma manana, a las 11:30; (d)
que el recurrido oficial de las prisiones de la ciudad John Doe fue asimismo emplazado en aquella manana, a
las 11:30; (e) que a la 1:05 p. m. de aquel dia el Fiscal de la Ciudad envio su carta ya citada al oficial de las
prisiones, dando instrucciones para que se pusiese inmediatamente en libertad a los detenidos, menos
Montaniel y Deoduco; (f) quc la policia recibio dichas instrucciones a las 2 de la tarde, y a las 3:30 p. m. las
cumplimento soltando a los detenidos, excepto los ya mencionados Montaniel y Deoduco; (g) que, a pesar
de que estos dos ultimos fueron arrestados el 8 y 7 de Noviembre, respectivamente, la policia no envio a la
Fiscalia los papeles acerca de sus casos sino en la tarde del 11 de Noviembre, es decir, del mismo dia en
que se presento la solicitud de habeas corpus; (h) que la querella contra Montaniel, por vejacion injusta, se
presento ante el juzgado municipal de Manila a las 2 de la tarde del 11 de Noviembre, es decir, algunas
horas despues de presentada la solicitud de habeas corpus; (i) que la querella contra Deoducos por desobe
diencia a un policia, se presento ante el juzgado municipal solamente en la manana del 12 de Noviembre, o
sea, al dia siguiente de interpuesto el recurso de habeas corpus.

Tambien resultan de los autos e informes los siguientes hechos: (1) que respecto de los diez detenidos que
posteriormente fueron puestos en libertad por no haberse hallado ningun cargo fundado contra ellos, la
Fiscalia admite haber recibido a tiempo de la policia los papeles correspondientes, es decir, dentro de 6
horas despues de verificados los arrestos, pero que si no pudo presentar ninguna querella durante un
periodo de 7 dias del 5 al 11 de Noviembre o decidir que no habia ninguna sedicion como despues
decidio, fue porque tenia otros muchos trabajos y porque, ademas, necesitaba de tiempo para leer y
desentranar el significado de las hojas volantes y manifiestos, y ver si en ellos habia alguna manifestacion
sediciosa o criminal; (2) la Fiscalia admite que las hojas volantes y manifiestos no eran voluminosos sino
que se componia de unas cuantas hojas y que normalmente no se necesitaban dias ni siquiera horas para
leerlos y determinar su significacion y sentido, pues no estaban concebidos y escritos en jeroglificos, sino en
un tagalo sencillo, llano y popular, como es usual en papeles de propaganda; (3) que durante la detencion
de los arrestados se trato de gestionar y obtener su libertad provisional y la Fiscalia senalo a dicho efecto la
prestacion de una fianza de P12,000 para cada uno, basando la Fiscalia su requerimiento en la gravedad del
delito supuestamente cometido el de sedicion; (4) que asi continuaron las cosas hasta que se presento
ante esta Corte la solicitud de habeas corpus en la manana del dia 11, viniendo luego la rapida sucesion de
acontecimientos de que ya se ha hecho merito.

Habiendo sido puestos en libertad diez de los doce detenidos antes de que se viera la presente solicitud
de habeas corpus es todavia pertinente que examinemos la totalidad de los hechos, incluso los relativos a
los ya liberados? Creemos que si; la cuestion, a nuestro juicio, no ha venido a ser meramente academica,
por las siguientes razones: primera, porque ya esta Corte habia asumido jurisdiccion sobre el caso mediante
la presentacion de la solicitud de habeas corpus cuando los diez detenidos fueron soltados de hecho, cabe
afirmar que la interposicion de este recurso fue cl motivo de que se les soltase, pues no podia ser simple
coincidencia casual el que, al cabo de varios dias de extrana inaccion, se diese como de prisa y corriendo la
orden de libertad provisional unas cuantas horas despues de registrada en la escribania de esta Corte al
solicitud de habeas corpus; segunda, porque si bien es cierto que Montaniel y Deoduco, los dos que no han
sido soltados, fueron arresta dos independientemente de los otros y en diferentes fechas, sus casos, sin
embargo, son perfectamente identicos a los de los otros, pudiendo decirse que la policia arresto y detuvo a
todos ellos como partes de una conspiracion y sedicion organizada; asi que para lograr una adecuada
perspectiva no hay mas remedio que enfocar conjuntamente los casos, o hay que decirlo mas bien en
singular el caso de los doce; y tercera, porque si bien es verdad que en los procedimientos de habeas
corpus la cuestion principal es la liberacion fisica de la persona que esta privada de libertad y que cuando se
ha obtenido tal resultado parece que los procedimientos deben darse por terminados y, por lo general,
huelga todo comentario o exposicion de criterio sobre los hechos y la ley o doctrina juridica aplicable o
deducible de los mismos, es evidente, sin embargo, que se dan casos en que los hechos son de tal
transcendencia en relacion con la vida de las instituciones, con la existencia del Estado, con las libertades
publicas, con el orden social, o con la existencia de la misma comunidad civil y politica, que no porque
deliberada o indeliberadamente se logra hurtarlos a la accion y decision de los tribunales, estos quedan
excusados de exponer su criterio o hacer alguin pronunciamiento, maxime si como en nuestro caso, en el
caso de esta Corte Suprema, el pronunciamiento judicial, la exposicion de criterio puede no ser una cosa
Ineramente teorica y academica, sino que puede irradiar un activo y eficaz influjo de saludable ejemplaridad
y repercusion en la vida juridica sentando normas inequivocas de politica y conducta publica, o hien
condenando y corrigiendo desmanes y abusos si abusos y desmanes se han cometido; y no cabe duda de
que el que tenemos ante Nos es uno de esos casos. Este es un caso en que no hay mas remedio que hablar
claro y fuerte para que lo oigan hasta los sordos, si se quiere que esta republica pise terreno firme y seguro
en su lento caminar hacia el cumplimiento de sus destinos humanos e historicos; si se quiere que entre
nosotros la constitucion, la ley, el orden, la libertad y la democracia no sean un mito, juguete de tiranuelos y
despotillas, sino realidades vivientes y cotidianas; si se quiere, en una palabra, que este colosal experimento
en que estamos empenados experimento de democracia politico-economico-social-cristiana en el gran
pielago de la Oceania resulte un acabado exito y una obra que podamos legar con orgullo a nuestros
descendientes.

Lo primero que salta a la vista es que los doce obreros de que se trata no estaban cometiendo ningun delito,
mucho menos el de sedicion, cuando sin previa orden judicial de arresto fueron aprehendidos como si
hubiesen sido cogidos in fraganti en el preciso momento de perpetrar un crimen de esos que dan lugar a
procedimientos de oficio y captura y detencion inmediatas por cualquier agente de seguridad publica. Es
verdad que eran huelguistas, pero es casc, la huelga un crimen? Es verdad tambien que algunos de ellos
fueron cogidos repartiendo y distribuyendo en las calles ciertas hojas volantes y pegando en muros y
paredes ciertos manifiestos, pero eran criminosos, incendiarios o subversivos estos papeles? Tampoco: la
Fiscalia de la ciudad, despues de examinarlos por varios dias paciente y minucioso examen! acabo por
dictaminar a ultima hora que se trataba de literatura inocente, esto es, que no contenia nirguna
manifestacion sediciosa, recomendando en consecuencia que diez de los doce fuesen inmediatamente
soltados despues de una detencion no solo absolutamente injustificada, sino ademas ilegal porque excedio
con mucho las 6 horas que fija el codigo penal como tiempo maximo de detencion en los casos en que no
hay previa orden judicial de arresto y no se entrega al detenido a la autoridad judicial correspondiente
dentro de dichas 6 horas.

Es cierto asimismo que algunos de los mencionados obreros fueron cogidos por la policia mientras estaban
pacificamente parados en una esquina formando pequenos grupos, hallandose a lo mas en su poder copia
del aviso para un mitin de la organizacion obrera a que estaban afiliados; pero de cuando aca ha sido un
crimen el estar pacificamente ]evantados en una esquina, siquiera fuese eil pequenos grupos, y el tener en
el bolsillo la copia de una convocatoria para un mitin pacifico? Esto jamas habia sido un crimen ni en los dias
mas obscuros de nuestra sujecion a la soberania americana; menos ha de serlo ahora en que somos una
nacion independiente, constituimos una republica, y estamos cobijados bajo la sombra de nuestra propia
bandera, tehida en grana de la sangre de tantos y tantos martires de la libertad que no, no es posible
hayan muerto en vano!

Es cierto igualmente que a uno de dichos obreros se le cogio porque andando por las calles tenia arrollada al
cuerpo notable experto en el arte de la propaganda! Una banda en que se leian siguientes palabras en
tagalo:" Damayan kami, huwag mag-eskirol!" (Help us, dont be a scab! Ayudadnos, no seais desertores!);
parece que la policia hallo esto como algo subversivo, como una incitacion a cometer sedicion. Resulta
patente, sin embargo, que el gesto de este obrero propagandista no podia ser mas subversivo ni mas
incendiario que el de Diogenes, el cinico, aquel que, metido en una barrica y portando una linterna, rodaba
por las calles de Atenas en pleno dia buscando un hombre. Que sepamos, a ningun policia ateniense se le
ocurrio coger a Diogenes por atentar contra la seguridad de la republica. . . .

Ahora llegamos al caso de Montaniel y Deoduco: el primero fue cogido porque trato de parar a un chofer de
la ciudad mientras guiaba un "jeep" y le invito a que se sumase a la huelga: y el segundo porque entro sin
permiso en un deposito de vehiculos de motor de la ciudad y no quiso salir de alli desobedeciendo las
ordenes del policia de guardia. La policia creia que estos actos eran sediciosos, y arresto y detuvo a
Montaniel y Deoduco por varios dias. Sin embargo, la Fiscalia, al igual que en los otros casos, dictamino que
tampoco habia aqui sedicion, pero recomendo la continuacion de la detencion querellandoles por faltas que
ni siquiera dan lugar a obligado arresto, segun el codigo penal: contra Montaniel, por supuesta vejacion
injusta; y contra Deoduco, por supuesta desobediencia ligera a unas ordenes policiacas. Verdad que esto
hace recordar el laborioso parto de los montes? Un raton despues de tanto estruendo, tanta batahola. . . .
Pero tambien hace recordar algo mas: la hoja de parra biblica para cubrir embarazos y verguenzas de ultima
hora. . . . Algunos podran incluso decir que para el buen nombre y prestigio de la autoridad acaso hubiera
sido mejor reconocer el error paladinamente, con gallarda hombradia, soltando a todos los detenidos sin
excepciones forzadas y especiosas. Hay hasta grandeza y respetabilidad en la valiente admision de las
propias faltas, yerros y limitaciones.

Se ha querido atenuar la gravedad de la accion policiaca tomando por sedicion lo que no era mas que llano
ejercicio de derechos elementales de ciudadania, con la excusa de la ignorancia, alegandose que los
aprehensores eran simples patrulleros o reclutas, por lo que no cabia esperal de ellos que discerniesen bien
entre el delito de sedicion y un acto puramente inocente o una mera falta. Pero es posible tal cuantia de
ignorancia en el personal policiaco de este pais? No se celebran acaso examenes de servicio civil para la
calificacion de dicho personal, fijandose ciertas reglas, normas y requisitos de estudios escolares para poder
ser admitidos en tales examenes? Pero suponiendo ya lo que es mucho suponer que cupiera invocar la
ignorancia o falta de instruccion a favor del policia, patrullero o recluta de una aldea, de un villorrio es
posible, es siquiera medianamente decoroso que eso se invoque a favor del policia metropolitano de la
ciudad de Manila, la capital de la republica? Ademas, tratandose de una huelga obrera de tales proporciones
como la que motivo los arrestos que nos ocupan suceso dramatico, sensacional que agito y conmovio a
todo el vecindario de la ciudad de Manila por afectar a ciertos servicios municipales indispensables como
se puede concebir que los patrulleros y reclutas del cuerpo de policia salieran a la calle para cumplir sus
deberes en la custodia y mantenimiento del orden publico sin un plan previamente concertado y preparado
por sus jefes y superiores, y sobre todo, sin recibir antes de estos las necesarias instrucciones sobre como
iban a cumplir tales deberes, sobre que actos debian considerarse delictivos o sediciosos, sobre que actos y
manifestaciones podian permitirse y tolerarse, etc., etc.? Es mas: suponiendo ya que los aprehensores, en la
precipitacion o en el calor del momento, se equivocaran o se excedieran abusando de sus poderes, haciendo
lo que hicieron, esto es, arrestando sin motivo justificado a los doce huelguistas de que se trata no tenia,
no tiene la policia de Manila un cuerpo o una division legal, compuesta de abogadcs, trabajando
tranquilamente en sus mesas, entre las cuatro paredes de una oficina, rodeados de libros, sin prisas, sin
excitaciones, depurando los hechos de cada caso, de cada arresto, examinando su fase legal, compulsando y
analizando papeles y documentos, evaluando precedentes locales y extranieros, etc., etc.? Y lno tenia la
policia de Manila, con toda su division legal, el periodo de 6 horas que senala la ley para todo ese trabajo de
investigacion, de examen, de analisis de los hechos y de la ley, para ver si se habia cometido o no un
crimen, si se habia perpetrado o no el delito grave de sedicion? Si hubiera habido el debido respeto, la
debida consideracion a la libertad, a los derechos constitucionales del individuo derechos sagrados,
inviolables, aunque ese individuo fuese un simple obrero, un humilde recogedor de cubetas municipales
por que la policia de Manila, con toda su bateria de abogados, comenzando por el Jefe hasta el ultimo
oficial, no habia de exprimir ese periodo legal de 6 horas, sacar de el todo el partido posible para estudiar y
depurar los arrestos y ver que no estaban justificados a la luz de la ley de sedicion conclusion a que
despues se llego, pero varios dias despues de tener pisoteada la libertad en los calabozos municipales, en
contravencion de la ley?

Los abusos, arbitrariedades, extralimitaciones y excesos toritarios por parte de la policia o de cualquier
agente de seguridad y orden publico son una cosa que jamas debe ser tomada ligeramente, frivolamente,
con la indiferencia y despreocupacion con que muchas veces se toman ciertas cosas que se estiman
inevitables o rutinarias "matter of course," como se dice en ingles si se quiere que la causa de la
democracia y libertad no sufra entre nosotros un quebranto que puede ser fatal para la existencia misma de
la republica. La historia y la experiencia nos demuestran de consuno que la indiferencia, la dejadez de los
pueblos es la que siempre ha echado a perder la libertad en el mundo. Es harto significativo que en nuestra
misma epoca los gobiernos totalitarios, de sangre y de fuerza, hayan todos tenido que afianzarse en la
policia para consolidar su poder por los cuatro costados y asegurar la castracion, mejor todavia, la
estrangulacion de la voluntad popular, el abatimiento de toda resistencia ciudadana: el nazismo, en Hitler y
su gestapo; el fascismo, en los rufianes de camisa negra de Mussolini; el despotismo nipon, en su famoso
kempetai; y el absolutismo comunista, en la ogpu. Y el proceso de disolucion ha comenzado siempre por la
inercia, la abulia de las masas. Pocas frases historicas tienen la perenne significacion vital de esta: "La
vigilancia es el eterno precio de la libertad." O de estas otras de nuestro gran Dr. Rizal: "La resignacion no
siempre es virtud; es crimen cuando alienta tiranias" "No hay tiranos donde no hay esclavos." O de esta
otra: "Cada pueblo tiene el gobierno que se merece.

(Asi que, entre parentesis, merecen placemes las sociedades de caracter civico y profesional y algunos de
sus miembros que romanticamente, desinteresadamente, han comparecido en el presente caso para romper
lanzas por la causa de la libertad. Ellos pertenecen a una orden be nemerita que puede propiamente
llamarse la Orden de los Vigilantes de la Libertad.)

Se arguye en favor de los recurridos que la policia entrego a la Fiscalia de Manila los papeles
correspondientes dentro de las 6 horas que fija el articulo 125 del Codigo Penal Revisado y que, por tanto, la
demora ilegal, si la hubo, no tuvo lugar en los cuarteles de la policia sino en la oficina del Fiscal. Aunque ello
no se trasluce clara e inequivocamente en autos, parece que se puede admitir que respecto de los 10 que
han sido puestos en libertad los papeles se entregaron a la Fiscalia oportunamente; no asi respecto de
Montaniel y Deoduco, los dos cuya detencion se ha prolongado. Resulta de autos y de los informes
producidos en la audiencia que Deoduco fue arrestado el 7 de Noviembre y Montaniel el 8; que los papele,s
en ambos casos se entregaron por la policia a la Fiscalia en la tarde del 11 de Noviembre, 4 y 3 dias
respectivamente despues del arresto, es decir, mucho despues de la 6 horas fijadas por la ley; que la
querella contra Montaniel se presento, como queda dicho mas arriba, en la misma tarde del dia 11, y la
querella contra Deoduco, por desobediencia, ya en la manana del 12, esto es, en el mismo dia de la vista de
la presente solicitud de habeas eorpus.

La Fiscalia explica la demora diciendo que por aquellos dias estaba sobrecargada de trabajos; que, ademas
de los 12 obreros detenidos de que se trata, habia otros muchos por diferentes delitos y faltas; que
necesitaba de tiempo para examinar bien las hojas volantes y demas papeles; que tambien necesitaba de
tiempo para atar bien los cabos y las circunstancias a fin de ver si con la huelga estaba relacionado un
movimiento coordinado de sedicion, y si los actos de los 12 arrestados formaban parte de ese movimiento.
La Fiscalia admite haber fijado en la cantidad prohibitiva de P12,000 la fianza que debia prestar cada
detenido para su libertad provisional mientras se estudiaban los casos. Mas tarde, cuando la Fiscalia se
convencio de que no habia sedicion ni nada que se le pareciera, recomendo una fianza de P100 para
Montaniel y de P200 para Deoduco.

Sin discutir la responsabilidad de la Fiscalia por la demora si esta se puede o no justificar

administrativamente es cuestion que no nos compete considerar ni resolver vamos a limitarnos a
comentar y discutir la fase juridica, legal. Esta en orden naturalmente el hacer la siguiente pregunta: es
correcta, es acertada la asercion de que el "Promotor Fiscal de Manila es un funcionario judicial (judicial
officer)," y que, por tanto, la entrega al mismo de la persona de un detenido dentro del periodo de 6 horas
equivale a la entrega a las autoridades judiciales correspondientes (proper judicial authorities) de que habla
el articulo 125 del C6digo Penal Revisado? Creemos que no: ni por su letra ni por su espiritu puede aplicarse
por extension la fraseologia de ese articulo al Fiscal de la ciudad de Manila o a cualquier otro Fiscal; ese
articulo no puede referir se mas que a un tribunal, a un juzgado, sea municipal, sea de primera instancia.
Asi que estoy de perfecto acuerdo con la ponencia cuando positivamente sienta la doctrina de que "si bien
un arresto puede hacerse sin orden cuando hay motivos razonables para ello (regla 109, articulo 6,
Reglamento de los Tribunales), el detenido no puede ser recluido fuera del periodo prescrito por la ley, a
menos que una orden de arresto se obtenga antes de un tribunal competente" (veanse las autoridades que
se citan), y que "en el presente caso el Fiscal de la ciudad no tenia autoridad para expedir ordenes de
arresto y carecia de facultad para convalidar tal detencion ilegal con solo presentar las que rellas, o con una
orden de su propia cuenta, ora tacita, ora expresa" (veanse asimismo las autoridades que se citan).

De lo dicho se sigue que cuando la policia entrega a la Fiscalia de la ciudad despues del periodo de 6 horas
prescrito por la ley los papeles sobre un detenido arrestado sin previa orden al efecto, no por ello se cura la
ilegalidad del arresto y detencion, sino que dicha ilegalidad continua y persiste hasta que el Fiscal presenta
la querella r obtiene una orden de arresto del tribunal competente, o que, tratandose de delito, mediante la
prestacion de una fianza cuya cuantia se fijare y recomendare por dicho Fiscal, la policia soltare al detenido,
a tenor de lo previsto en el articulo 2460 del codigo administrativo.

Puede ocurir, sin embargo, que la politica entregue los papeles a la Fiscalia de la ciudad del periodo de 6
horas, pero que la Fiscalia no solo deja pasar dicho periodo, sino que transcurren dias, hasta semanas sin
actuar sobre el caso en uno u otro sentido. La cuestion en orden naturalmente es la siguiente: es legal o
ilegal la detencin del arrestado en tal caso? En otras palabras: queda suspendido el periodo de 6 horas
durante el tiene que el Fiscla de la ciudad trada en acruar sobre el case? La contestacion tiene que ser
necesarianmente nagativa. La rigidez, la inflexibilidad del periodo de 6 horas rezo no solo para la policia,
sino para cualquier otra agencia o ramo oficial, sin excluir a la Fiscalia de la ciudad de Manila. Si por
cualquier motivo la Fiscalia dejare de actuar dentro de dicho periodo, el deber de la politica o del que tenga
la custodia del detenido es soltarle, quiera o no quiera el Fiscal, lo recomiendo o no lo recomiende. De otra
manera, la restriccion que estatuye la ley a favor de los detenidos sin previa orden de arresto restriccion
que implementa las garantias de la libertad establecidas en la Consitucion resulta un mito. La filosofia de
la ley se, a saber: solamente se verifica un arresto sin previa orden cunado hay motives razonables para
ello, v. gr., cuando un individou es codigo in franganti cometiendo un delito. La ley presupone, por tanto,
que el Estado tiene a mano todos los elementos necesarios para decidir que accion ha de tomar dentro del
periodo de 6 horas, ya entragando la persona del detenido a las autoridades judiciales correspondientes
mediente la querella procedente, a tenor del articulo 125 del codigo penal revisado; ya poniendole en
libertad provinsional bajo una fianza razonable, de acuerdo con el citado articulo 2460 del codigo
administrativo; o ya poniendole completamente en la calle por falta de meritos en el caso. Si ninguna de
estas cosas puede hacer el Estado en 6 horas no puede ser mas que por dos motivos: o porque se quiere
cometer una arbitrariedad, o la maquinaria oficial se halla en un deplorable estado de confusion, ineptitud o
impotencia.

Se arguye con enfasis que bajo esta interpretacion la prosecucion del crimen sufriria un serio quebranto,
sobre todo en la ciudad de Manila; que materialmente la Fiscalia no puede actuar adecuadamente sobre
algunos casos en el plazo perentorio de 6 horas. Si esto es verdad el remedio no es infringir la ley como
cosa inevitable, rutinaria; el remedio seria o recabar de la Legislatura que se reforme la ley en la forma
que se estime conveniente, o implementar y perfeccionar la maquinaria de la prosecucion criminal,
colocandola a la altura de las circunstancias. No hay nada mas anarquico, mas subversivo y fatal para el
principio de la autoridad del buen gobierno que el tener leyes que no se cumplen, leyes que se infringen
hasta por los llamados a ponerlas en vigor. "To be or not to be, that is the question." O existe la ley y hay
que cumplirla; o si la ley es mala o impracticable, hay que reformarla o derogarla. Lo que no se debe
permitir es el disolvente espectaculo de la diaria inobservancia de la ley.

Tenemos un precedente recientisimo: la ley sobre el Tribunal del Pueblo (Ley del Commonwealth. No. 682,
articulo 19). Una de las disposiciones mas importantes de esa ley es precisamente la que reforma el articulo
125 del codigo penal revisado, extendiendo el periodo de 6 horas a 6 meses a fin de legalizar la detencion
de los que, sospechosos de traicion, fueron arrestados y detenidos por las autoridades del ejercito
americano inmediatamente despues de la liberacion de Filipinas de la conquista japonesa. De paso se puede
precisamente decir que esa reforma es uno de los mejores argumentos contra la tesis de que durante el
tiempo en que la Fiscalia de la ciudad estudia el caso el periodo de 6 horas queda en suspenso y se legaliza
la detencion. Si esto fuese correcto, no hubiera habido necesidad de insertar esa disposicion reforrnatoria en
la ley sobre el Tribunal del Pueblo.

TUASON, J., dissenting: chan rob1e s virtual 1aw l ibra ry

The writ should have been denied or dismissed as to all the persons on whose behalf the petition was filed,
including Pascual Montaniel and Pacifico Deoduco.

According to the return the last two had been arrested by the police for inciting to sedition on the occasion
of the strike of the City of Manila workers and had been duly charged after their arrest with unjust vexation
and disobedience to public orders, respectively. The complaints had been filed by the City Fiscal with the
municipal court, and the Fiscal had recommended a bail of P100 for Montaniel and P200 for Deoduco for
their temporary release. The fiscal in his return further stated that these complaints had been docketed on
"November 11, 1946, before and after the receipt by them (respondents) of their respective copies of the
petition for habeas corpus herein filed." The last allegation contradicts the finding in the decision of the
majority that "the complaints were filed on the same day when this case was heard before this Court, that
is, on November 12, 1946." cralaw virtua 1aw lib rary

The allegations in the return are presumed to be correct, the same not having been controverted. The return
to the writ, of itself, is not conclusive of the facts alleged therein, but is prima facie proof of such facts. In
the absence of a denial, or appropriate pleading avoiding their effect, they will be taken as true and
conclusive, regardless of the allegations contained in the petition, and the only question for determination is
whether or not the facts stated in their return, as a matter of law, authorizes the restraint under
investigation. (39 C. J. S., 664, 665.)

Here Pascual Montaniel or Pacifico Diaduco entitled to be discharged upon the facts set forth in the return?
The decision of the majority says yes. It reasons that "Even assuming that they (the prisoners) were legally
arrested without warrant on November 7 and 8, 1946, respectively, their continued detention became illegal
upon the expiration of six hours without their having been delivered to the corresponding judicial authorities.
(Article 125, Rev. Pen. Code, as amended by Act No. 3940.) Their cases were referred to the City Fiscal late
in the afternoon of November 11, 1946, that is four and three days, respectively, after they were arrested.
The illegality of their detention was not cured by the filing of the informations against them, since no
warrants of arrest or orders of commitment have been issued by the municipal court up to the hearing of
this case before this Court." The decision goes on to say that "the City Fiscal, who has no authority to issue
warrants of arrest (Hashim v. Boncan and City Fiscal of Manila, 71 Phil., 261) was powerless to validate such
illegal detention by merely filing informations or by any order of his own, either express or implied." cralaw vi rtua 1aw lib rary

With all modesty and with due respect to the opinion of the majority, I take a different view. The bringing of
the prisoners before the City Fiscal made a whole lot of difference and totally changed the legal aspects of
the detention. The Prosecuting Attorney of the City of Manila is a judicial officer with powers to make
investigations on the same level as a municipal judge or justice of the peace. (United States v. Rubal, 37
Phil., 677; section 2, Rule 108, of the Rules of Court.) Section 2, Rule 108 provides that "every justice of the
peace, municipal judge or city fiscal shall have jurisdiction to conduct preliminary investigation of all
offenses alleged to have been committed within his municipality or city, cognizable by the Court of First
Instance." And with particular reference to the Fiscal of the City of Manila, section 2465 of the Revised
Administrative Code ordains that he "shall cause to be investigated all charges of crimes, misdemeanors,
and violations of ordinances, and have the necessary informations or complaints prepared or made against
the persons accused." cralaw virtua1aw l ibra ry

I conclude from these provisions that when Montaniels and Diaducos cases were reported to the City Fiscal,
that action put an end to the illegality of their detention, assuming that the prolonged detention had been
unwarranted. In other words, if Montaniels and Diaducos detention had become illegal upon the expiration
of six hours from the time of their arrest, it re acquired its lawful character the moment they were taken to
the City Fiscal for appropriate action on their cases; in fact the prisoners could not thereafter the released
by the police except in the manner provided by law. What the law is, I shall endeavor to explain.

There is legal and rational support for the proposition that after the case of an arrested person has been
placed in the hands of a fiscal or municipal judge, it is the right, let alone the duty, of the police to keep him
in custody until he is discharged according to law regardless of the illegality of his previous detention, which
by, law way, is not to be confused with the arrest. This practice is made necessary, at least in the City of
Manila, by the very nature of things as well as by express enactments. The law, statutory and common, is
that on officer or private individual who has made an arrest of a person without a warrant has authority to
detain him in custody until a preliminary hearing against him can be had (4 Am. Jur., 49) and he may then
be committed to jail of held to bail (William F. Down v. Sherlock Swann, 23 L.R.A., N. S., 739, citing Brish v.
Carten 98 MD., 445, and Edger v. Burke, 96 MDD., 722). Supplementing and confirming this general rule
the Manila Charter specifically vests on the Chief of Police the power to keep the prisoner in custody of
release him on bail, although in cases of violation of any penal law, as distinguished from violations of
municipal ordinances, the bail is fixed by the City Fiscal and the release must be authorized or
recommended by the latter. Section 2460 of the Revised Administrative Code thus stages that "the of chief
police may take good and sufficient bail for the appearance before the city Court of any person arrested for
violation of any city ordinances: Provided, however, That he shall not exercise this power in case of
violations of any penal law, except when the fiscal of the city shall so recommend and fix the bail to be
required of the person arrested." cralaw virtua1aw li bra ry

In consonance with the foregoing rule and provision, the practice followed by the City Fiscal of Manila, when
the person arrested without a warrant is brought before him, has been either to fix the bond and order the
provisional release of the prisoner before filing a complaint or information or making an investigation, or else
to file a complaint or information and leave it to the appropriate court to admit the detained person to bail.
In neither case it is necessary to, nor does the court, as a matter of fact, issue an order of arrest. This is so
simply because the accused is already under arrest; and the court does not issue a commitment because
there is no final judgment and because the arrest has not been effected by its order. It is to be remembered
that the City Fiscal himself has no authority to order, but only to recommend to the police, the release of
detained persons. Neither is the City Fiscal empowered to order the continued detention of such persons for
the reason already stated, that it is upon the authority and responsibility of the Chief of Police that this
functionary holds the prisoners until the court commands his discharge.
The previous illegality of the detention of Montaniel and Deoduco has no relevancy to their petition
for habeas corpus and it is a mistake for this Court to allow itself to be influenced thereby. There can be no
serious doubt as to the intent of article 125 of the Revised Penal Code, as amended by Act No. 3940, which
says that "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 to the
proper judicial authorities within the period of six hours." This provision refers solely to detention by a police
officer prior to the retained persons delivery to the proper judicial officer. It does not restrict the time within
which the fiscal of the city, a justice of the peace or a municipal judge should act on the case. lt. seeks to
prevent abuses by the police to prevent them from keeping for an unreasonable length of time arrested
persons who are not properly charged before a competent judicial officer, or whose detention has no
justifiable cause. It does not force the city fiscal, justice of the peace or municipal judge to release the
prisoners at or before the expiration of six hours from the time of their arrest. Nothing could have been
farther from the thought of the legislature than to tie so tightly the hands of the law, and coddle and pamper
lawlessness to a calamitous extreme. It requires no mental effort to see that it is beyond the ability of any
person to make an investigation of a criminal case, file a complaint or information, and secure an arrest
warrant or commitment in six hours, or worse still what remains, if any, of that period computed from the
time of the arrest. The theory sustained by the majority, if put into practice, would play havoc on the efforts
of law-enforcement agencies and the administration of criminal law, certain to produce disastrous
consequences, not difficult to imagine, in the maintenance of peace and order. The decision of this Court
sets a precedent which will open the door to evasions of criminal prosecution. The populous conditions of
Manila and other centers of population in the Philippines as they exist today, and the modern facilities of
transportation and rapid transit afford easy means for avoiding re-arrest or fleeing from justice. Such
evasions and such escapes would be the result of the holding that a person who has been arrested without a
warrant and detained beyond the six-hour limit by the police should be discharged irrespective of the filing
of a complaint after the lapse of that period, on the tendency of an appropriate criminal action against him.
The situation which I have pictured will follow from the ruling that even if a crime has been committed by
the person arrested and a complaint has been filed against him, he nevertheless should be released, without
prejudice to his re-arrest on a formal information or complaint lodged against him.

I do not justify or condemn the arrest or the detention beyond the six hour limit of the petitioners. This
question is not in issue and must be judged in the light of the surrounding circumstances of the case which
are not before us. But I do maintain that the illegal detention, if there was illegal detention, and the
subsequent lawful restraint are separable and must not be confounded with each other. If a crime was
committed as a result of the prolonged detention of the prisoners, there is the penal law and the proper
machinery of justice to take care of the erring officials. To prosecution and punishment or correction of
criminal offenders is a vital concern of the State, vital to its very existence. The interests of the people
should not be sacrificed or jeopardized by the ignorance, negligence or malicious conduct of the police.

The opinion of the majority stems from the erroneous assumption that the right to the writ must be
determined according to the facts as they appear at the time of the filing of the petition. Some early cases
did hold that valid process obtained after the time of service of the writ of habeas corpus was not sufficient,
and that a person detained unlawfully must be discharged from the imprisonment under the unlawful
proceedings, although he might thereafter be detained on lawful proceedings. But the better, present-day
and preponderant rule, which is more in keeping with modern conditions and better safeguards against
modern facilities for escape, is that a prisoner has no right to a writ of habeas corpusunless he is entitled to
immediate release, and the writ will not issue unless he is presently in restraint of his liberty without
warrant of law; that the writ of habeas corpus is concerned solely with the legality of the restraint at the
time of the filing of the petition for its issue, or by the conditions existing at the time of the hearing or final
decision thereon, and does not depend on the legality or illegality of the original caption; and that where the
detention is lawful at the time of the return, it is sufficient to defeat the writ. (39 C. J. S., 443, 444.) The
United States Supreme Court, in an opinion written by Mr. Justice Brandies, declares that "the validity of a
detention questioned by a petitioner for habeas corpus is to be determined by the conditions existing at the
time of the final decision thereon." (United States ex. rel. Mensevich v. Tod, 68 Law. ed., 591.) Conversely,
it has been held, detention which was lawful in its inception may afterwards become unlawful and the
prisoner is then entitled to be discharged on habeas corpus, as, for example, where a prisoner has been
pardoned.

The statement therefore that "the city fiscal who has no authority to issue warrants of arrest (Hashim v.
Boncan and City Fiscal of Manila, 71 Phil., 261) was powerless to validate such illegal detention by merely
filing an information or by any other of his own, either express or implied, must be qualified. If by validation
of the illegal detention is meant wiping out of the penal offense that has already been consummated and
which resulted from the unlawful detention, there can be no disagreement. But if it means that the detention
having become illegal because it extended beyond six hours nothing short of a warrant of arrest issued by a
competent judge could stop the release of the prisoners under detention, the conclusion is against law and
sound principles of jurisprudence.

G.R. No. L-27360 February 28, 1968

HON. RICARDO G. PAPA, as Chief of Police of Manila; HON. JUAN PONCE ENRILE, as
Commissioner of Customs; PEDRO PACIS, as Collector of Customs of the Port of Manila; and
MARTIN ALAGAO, as Patrolman of the Manila Police Department, petitioners,
vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding Judge of Branch 23, Court of
First Instance of Manila, respondents.

Office of the Solicitor General for petitioners.

Juan T. David for respondents.

ZALDIVAR, J.:

This is an original action for prohibition and certiorari, with preliminary injunction filed by
Ricardo Papa, Chief of Police of Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis,
Collector of Customs of the Port of Manila; and Martin Alagao, a patrolman of the Manila Police
Department, against Remedios Mago and Hon. Hilarion Jarencio, Presiding Judge of Branch 23 of
the Court of First Instance of Manila, praying for the annulment of the order issued by respondent
Judge in Civil Case No. 67496 of the Court of First Instance of Manila under date of March 7, 1967,
which authorized the release under bond of certain goods which were seized and held by petitioners
in connection with the enforcement of the Tariff and Customs Code, but which were claimed by
respondent Remedios Mago, and to prohibit respondent Judge from further proceeding in any
manner whatsoever in said Civil Case No. 67496. Pending the determination of this case this Court
issued a writ of preliminary injunction restraining the respondent Judge from executing, enforcing
and/or implementing the questioned order in Civil Case No. 67496 and from proceeding with said
case.

Petitioner Martin Alagao, head of the counter-intelligence unit of the Manila Police
Department, acting upon a reliable information received on November 3, 1966 to the effect that a
certain shipment of personal effects, allegedly misdeclared and undervalued, would be released the
following day from the customs zone of the port of Manila and loaded on two trucks, and upon orders
of petitioner Ricardo Papa, Chief of Police of Manila and a duly deputized agent of the Bureau of
Customs, conducted surveillance at gate No. 1 of the customs zone. When the trucks left gate No. 1
at about 4:30 in the afternoon of November 4, 1966, elements of the counter-intelligence unit went
after the trucks and intercepted them at the Agrifina Circle, Ermita, Manila. The load of the two trucks
consisting of nine bales of goods, and the two trucks, were seized on instructions of the Chief of
Police. Upon investigation, a person claimed ownership of the goods and showed to the policemen a
"Statement and Receipts of Duties Collected in Informal Entry No. 147-5501", issued by the Bureau
of Customs in the name of a certain Bienvenido Naguit.

Claiming to have been prejudiced by the seizure and detention of the two trucks and their
cargo, Remedios Mago and Valentin B. Lanopa filed with the Court of First Instance of Manila a
petition "for mandamus with restraining order or preliminary injunction, docketed as Civil Case No.
67496, alleging, among others, that Remedios Mago was the owner of the goods seized, having
purchased them from the Sta. Monica Grocery in San Fernando, Pampanga; that she hired the
trucks owned by Valentin Lanopa to transport, the goods from said place to her residence at 1657
Laon Laan St., Sampaloc, Manila; that the goods were seized by members of the Manila Police
Department without search warrant issued by a competent court; that anila Chief of Police Ricardo
Papa denied the request of counsel for Remedios Mago that the bales be not opened and the goods
contained therein be not examined; that then Customs Commissioner Jacinto Gavino had illegally
assigned appraisers to examine the goods because the goods were no longer under the control and
supervision of the Commissioner of Customs; that the goods, even assuming them to have been
misdeclared and, undervalued, were not subject to seizure under Section 2531 of the Tariff and
Customs Code because Remedios Mago had bought them from another person without knowledge
that they were imported illegally; that the bales had not yet been opened, although Chief of Police
Papa had arranged with the Commissioner of Customs regarding the disposition of the goods, and
that unless restrained their constitutional rights would be violated and they would truly suffer
irreparable injury. Hence, Remedios Mago and Valentin Lanopa prayed for the issuance of a
restraining order, ex parte, enjoining the above-named police and customs authorities, or their
agents, from opening the bales and examining the goods, and a writ of mandamus for the return of
the goods and the trucks, as well as a judgment for actual, moral and exemplary damages in their
favor.

On November 10, 1966, respondent Judge Hilarion Jarencio issued an order ex

parte restraining the respondents in Civil Case No. 67496 now petitioners in the instant case
before this Court from opening the nine bales in question, and at the same time set the hearing of
the petition for preliminary injunction on November 16, 1966. However, when the restraining order
was received by herein petitioners, some bales had already been opened by the examiners of the
Bureau of Customs in the presence of officials of the Manila Police Department, an assistant city
fiscal and a representative of herein respondent Remedios Mago.

Under date of November 15, 1966, Remedios Mago filed an amended petition in Civil Case
No. 67496, including as party defendants Collector of Customs Pedro Pacis of the Port of Manila
and Lt. Martin Alagao of the Manila Police Department. Herein petitioners (defendants below) filed,
on November 24, 1966, their "Answer with Opposition to the Issuance of a Writ of Preliminary
Injunction", denying the alleged illegality of the seizure and detention of the goods and the trucks
and of their other actuations, and alleging special and affirmative defenses, to wit: that the Court of
First Instance of Manila had no jurisdiction to try the case; that the case fell within the exclusive
jurisdiction of the Court of Tax Appeals; that, assuming that the court had jurisdiction over the case,
the petition stated no cause of action in view of the failure of Remedios Mago to exhaust the
administrative remedies provided for in the Tariff and Customs Code; that the Bureau of Customs
had not lost jurisdiction over the goods because the full duties and charges thereon had not been
paid; that the members of the Manila Police Department had the power to make the seizure; that the
seizure was not unreasonable; and the persons deputized under Section 2203 (c) of the Tariff and
Customs Code could effect search, seizures and arrests in inland places in connection with the
enforcement of the said Code. In opposing the issuance of the writ of preliminary injunction, herein
petitioners averred in the court below that the writ could not be granted for the reason that Remedios
Mago was not entitled to the main reliefs she prayed for; that the release of the goods, which were
subject to seizure proceedings under the Tariff and Customs Code, would deprive the Bureau of
Customs of the authority to forfeit them; and that Remedios Mago and Valentin Lanopa would not
suffer irreparable injury. Herein petitioners prayed the court below for the lifting of the restraining
order, for the denial of the issuance of the writ of preliminary injunction, and for the dismissal of the
case.

At the hearing on December 9, 1966, the lower Court, with the conformity of the parties,
ordered that an inventory of the goods be made by its clerk of court in the presence of the
representatives of the claimant of the goods, the Bureau of Customs, and the Anti-Smuggling Center
of the Manila Police Department. On December 13, 1966, the above-named persons filed a
"Compliance" itemizing the contents of the nine bales.

Herein respondent Remedios Mago, on December 23, 1966, filed an ex parte motion to
release the goods, alleging that since the inventory of the goods seized did not show any article of
prohibited importation, the same should be released as per agreement of the patties upon her
posting of the appropriate bond that may be determined by the court. Herein petitioners filed their
opposition to the motion, alleging that the court had no jurisdiction to order the release of the goods
in view of the fact that the court had no jurisdiction over the case, and that most of the goods, as
shown in the inventory, were not declared and were, therefore, subject to forfeiture. A supplemental
opposition was filed by herein petitioners on January 19, 1967, alleging that on January 12, 1967
seizure proceedings against the goods had been instituted by the Collector of Customs of the Port of
Manila, and the determination of all questions affecting the disposal of property proceeded against in
seizure and forfeiture proceedings should thereby be left to the Collector of Customs. On January
30, 1967, herein petitioners filed a manifestation that the estimated duties, taxes and other charges
due on the goods amounted to P95,772.00. On February 2, 1967, herein respondent Remedios
Mago filed an urgent manifestation and reiteration of the motion for the release under bond of the
goods.

On March 7, 1967, the respondent Judge issued an order releasing the goods to herein
respondent Remedios Mago upon her filing of a bond in the amount of P40,000.00, and on March
13, 1967, said respondent filed the corresponding bond.

On March 13, 1967, herein petitioner Ricardo Papa, on his own behalf, filed a motion for
reconsideration of the order of the court releasing the goods under bond, upon the ground that the
Manila Police Department had been directed by the Collector of Customs of the Port of Manila to
hold the goods pending termination of the seizure proceedings.

Without waiting for the court's action on the motion for reconsideration, and alleging that they
had no plain, speedy and adequate remedy in the ordinary course of law, herein petitioners filed the
present action for prohibition and certiorari with preliminary injunction before this Court. In their
petition petitioners alleged, among others, that the respondent Judge acted without jurisdiction in
ordering the release to respondent Remedios Mago of the disputed goods, for the following reasons:
(1) the Court of First Instance of Manila, presided by respondent Judge, had no jurisdiction over the
case; (2) respondent Remedios Mago had no cause of action in Civil Case No. 67496 of the Court of
First Instance of Manila due to her failure to exhaust all administrative remedies before invoking
judicial intervention; (3) the Government was not estopped by the negligent and/or illegal acts of its
agent in not collecting the correct taxes; and (4) the bond fixed by respondent Judge for the release
of the goods was grossly insufficient.

In due time, the respondents filed their answer to the petition for prohibition and certiorari in
this case. In their answer, respondents alleged, among others: (1) that it was within the jurisdiction of
the lower court presided by respondent Judge to hear and decide Civil Case No. 67496 and to issue
the questioned order of March 7, 1967, because said Civil Case No. 67496 was instituted long
before seizure, and identification proceedings against the nine bales of goods in question were
instituted by the Collector of Customs; (2) that petitioners could no longer go after the goods in
question after the corresponding duties and taxes had been paid and said goods had left the
customs premises and were no longer within the control of the Bureau of Customs; (3) that
respondent Remedios Mago was purchaser in good faith of the goods in question so that those
goods can not be the subject of seizure and forfeiture proceedings; (4) that the seizure of the goods
was affected by members of the Manila Police Department at a place outside control of jurisdiction of
the Bureau of Customs and affected without any search warrant or a warrant of seizure and
detention; (5) that the warrant of seizure and detention subsequently issued by the Collector of
Customs is illegal and unconstitutional, it not being issued by a judge; (6) that the seizing officers
have no authority to seize the goods in question because they are not articles of prohibited
importation; (7) that petitioners are estopped to institute the present action because they had agreed
before the respondent Judge that they would not interpose any objection to the release of the goods
under bond to answer for whatever duties and taxes the said goods may still be liable; and (8) that
the bond for the release of the goods was sufficient.

The principal issue in the instant case is whether or not, the respondent Judge had acted with
jurisdiction in issuing the order of March 7, 1967 releasing the goods in question.

The Bureau of Customs has the duties, powers and jurisdiction, among others, (1) to assess
and collect all lawful revenues from imported articles, and all other dues, fees, charges, fines and
penalties, accruing under the tariff and customs laws; (2) to prevent and suppress smuggling and
other frauds upon the customs; and (3) to enforce tariff and customs laws. 1 The goods in question
were imported from Hongkong, as shown in the "Statement and Receipts of Duties Collected on
Informal Entry". 2 As long as the importation has not been terminated the imported goods remain
under the jurisdiction of the Bureau of customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles, or secured to be paid, at the port
of entry and the legal permit for withdrawal shall have been granted. 3 The payment of the duties,
taxes, fees and other charges must be in full. 4

The record shows, by comparing the articles and duties stated in the aforesaid "Statement and
Receipts of Duties Collected on Informal Entry" with the manifestation of the Office of the Solicitor
General 5 wherein it is stated that the estimated duties, taxes and other charges on the goods subject
of this case amounted to P95,772.00 as evidenced by the report of the appraiser of the Bureau of
Customs, that the duties, taxes and other charges had not been paid in full. Furthermore, a
comparison of the goods on which duties had been assessed, as shown in the "Statement and
Receipts of Duties Collected on Informal Entry" and the "compliance" itemizing the articles found in
the bales upon examination and inventory, 6 shows that the quantity of the goods was underdeclared,
presumably to avoid the payment of duties thereon. For example, Annex B (the statement and
receipts of duties collected) states that there were 40 pieces of ladies' sweaters, whereas Annex H
(the inventory contained in the "compliance") states that in bale No. 1 alone there were 42 dozens
and 1 piece of ladies' sweaters of assorted colors; in Annex B, only 100 pieces of watch bands were
assessed, but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces of men's metal watch
bands (white) and 120 dozens of men's metal watch band (gold color), and in bale No. 7, 320
dozens of men's metal watch bands (gold color); in Annex B, 20 dozens only of men's handkerchief
were declared, but in Annex H it appears that there were 224 dozens of said goods in bale No. 2,
120 dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale No. 8, and another 200
dozens in bale No. 9. The articles contained in the nine bales in question, were, therefore, subject to
forfeiture under Section 2530, pars. e and m, (1), (3), (4), and (5) of the Tariff and Customs Code.
And this Court has held that merchandise, the importation of which is effected contrary to law, is
subject to forfeiture, 7 and that goods released contrary to law are subject to seizure and forfeiture. 8

Even if it be granted, arguendo, that after the goods in question had been brought out of the
customs area the Bureau of Customs had lost jurisdiction over the same, nevertheless, when said
goods were intercepted at the Agrifina Circle on November 4, 1966 by members of the Manila Police
Department, acting under directions and orders of their Chief, Ricardo C. Papa, who had been
formally deputized by the Commissioner of Customs, 9 the Bureau of Customs had regained
jurisdiction and custody of the goods. Section 1206 of the Tariff and Customs Code imposes upon
the Collector of Customs the duty to hold possession of all imported articles upon which duties,
taxes, and other charges have not been paid or secured to be paid, and to dispose of the same
according to law. The goods in question, therefore, were under the custody and at the disposal of
the Bureau of Customs at the time the petition for mandamus, docketed as Civil Case No. 67496,
was filed in the Court of First Instance of Manila on November 9, 1966. The Court of First Instance of
Manila, therefore, could not exercise jurisdiction over said goods even if the warrant of seizure and
detention of the goods for the purposes of the seizure and forfeiture proceedings had not yet been
issued by the Collector of Customs.

The ruling in the case of "Alberto de Joya, et al. v. Hon. Gregorio Lantin, et al.," G.R. No. L-
24037, decided by this Court on April 27, 1967, is squarely applicable to the instant case. In the De
Joya case, it appears that Francindy Commercial of Manila bought from Ernerose Commercial of
Cebu City 90 bales of assorted textiles and rags, valued at P117,731.00, which had been imported
and entered thru the port of Cebu. Ernerose Commercial shipped the goods to Manila on board an
inter-island vessel. When the goods where about to leave the customs premises in Manila, on
October 6, 1964, the customs authorities held them for further verification, and upon examination the
goods were found to be different from the declaration in the cargo manifest of the carrying vessel.
Francindy Commercial subsequently demanded from the customs authorities the release of the
goods, asserting that it is a purchaser in good faith of those goods; that a local purchaser was
involved so the Bureau of Customs had no right to examine the goods; and that the goods came
from a coastwise port. On October 26, 1964, Francindy Commercial filed in the Court of First
Instance of Manila a petition for mandamus against the Commissioner of Customs and the Collector
of Customs of the port of Manila to compel said customs authorities to release the goods.

Francindy Commercial alleged in its petition for mandamus that the Bureau of Customs had
no jurisdiction over the goods because the same were not imported to the port of Manila; that it was
not liable for duties and taxes because the transaction was not an original importation; that the
goods were not in the hands of the importer nor subject to importer's control, nor were the goods
imported contrary to law with its (Francindy Commercial's) knowledge; and that the importation had
been terminated. On November 12, 1964, the Collector of Customs of Manila issued a warrant of
seizure and identification against the goods. On December 3, 1964, the Commissioner of Customs
and the Collector of Customs, as respondents in the mandamus case, filed a motion to dismiss the
petition on the grounds of lack of jurisdiction, lack of cause of action, and in view of the pending
seizure and forfeiture proceedings. The Court of First Instance held resolution on the motion to
dismiss in abeyance pending decision on the merits. On December 14, 1964, the Court of First
Instance of Manila issued a preventive and mandatory injunction, on prayer by Francindy
Commercial, upon a bond of P20,000.00. The Commissioner of Customs and the Collector of
Customs sought the lifting of the preliminary and mandatory injunction, and the resolution of their
motion to dismiss. The Court of First Instance of Manila, however, on January 12, 1965, ordered
them to comply with the preliminary and mandatory injunction, upon the filing by Francindy
Commercial of an additional bond of P50,000.00. Said customs authorities thereupon filed with this
Court, on January 14, 1965, a petition for certiorari and prohibition with preliminary injunction. In
resolving the question raised in that case, this Court held:

This petition raises two related issues: first, has the Customs bureau jurisdiction to
seize the goods and institute forfeiture proceedings against them? and (2) has the Court of
First Instance jurisdiction to entertain the petition for mandamus to compel the Customs
authorities to release the goods?

Francindy Commercial contends that since the petition in the Court of first Instance
was filed (on October 26, 1964) ahead of the issuance of the Customs warrant of seizure
and forfeiture (on November 12, 1964),the Customs bureau should yield the jurisdiction of
the said court.
 The record shows, however, that the goods in question were actually seized on
October 6, 1964, i.e., before Francindy Commercial sued in court. The purpose of the
seizure by the Customs bureau was to verify whether or not Custom duties and taxes were
paid for their importation. Hence, on December 23, 1964, Customs released 22 bales
thereof, for the same were found to have been released regularly from the Cebu Port
(Petition Annex "L"). As to goods imported illegally or released irregularly from Customs
custody, these are subject to seizure under Section 2530 m. of the Tariff and Customs Code
(RA 1957).

The Bureau of Customs has jurisdiction and power, among others to collect revenues
from imported articles, fines and penalties and suppress smuggling and other frauds on
customs; and to enforce tariff and customs laws (Sec. 602, Republic Act 1957).

The goods in question are imported articles entered at the Port of Cebu. Should they
be found to have been released irregularly from Customs custody in Cebu City, they are
subject to seizure and forfeiture, the proceedings for which comes within the jurisdiction of
the Bureau of Customs pursuant to Republic Act 1937.

Said proceeding should be followed; the owner of the goods may set up defenses
therein (Pacis v. Averia, L-22526, Nov. 20, 1966.) From the decision of the Commissioner of
Customs appeal lies to the Court of Tax Appeals, as provided in Sec. 2402 of Republic Act
1937 and Sec. 11 of Republic Act, 1125. To permit recourse to the Court of First Instance in
cases of seizure of imported goods would in effect render ineffective the power of the
Customs authorities under the Tariff and Customs Code and deprive the Court of Tax
Appeals of one of its exclusive appellate jurisdictions. As this Court has ruled in Pacis v.
Averia, supra, Republic Acts 1937 and 1125 vest jurisdiction over seizure and forfeiture
proceedings exclusively upon the Bureau of Customs and the Court of Tax Appeals. Such
law being special in nature, while the Judiciary Act defining the jurisdiction of Courts of First
Instance is a general legislation, not to mention that the former are later enactments, the
Court of First Instance should yield to the jurisdiction of the Customs authorities.

It is the settled rule, therefore, that the Bureau of Customs acquires exclusive jurisdiction over
imported goods, for the purposes of enforcement of the customs laws, from the moment the goods
are actually in its possession or control, even if no warrant of seizure or detention had previously
been issued by the Collector of Customs in connection with seizure and forfeiture proceedings. In
the present case, the Bureau of Customs actually seized the goods in question on November 4,
1966, and so from that date the Bureau of Customs acquired jurisdiction over the goods for the
purposes of the enforcement of the tariff and customs laws, to the exclusion of the regular courts.
Much less then would the Court of First Instance of Manila have jurisdiction over the goods in
question after the Collector of Customs had issued the warrant of seizure and detention on January
12, 1967. 10And so, it cannot be said, as respondents contend, that the issuance of said warrant was
only an attempt to divest the respondent Judge of jurisdiction over the subject matter of the case.
The court presided by respondent Judge did not acquire jurisdiction over the goods in question when
the petition for mandamus was filed before it, and so there was no need of divesting it of jurisdiction.
Not having acquired jurisdiction over the goods, it follows that the Court of First Instance of Manila
had no jurisdiction to issue the questioned order of March 7, 1967 releasing said goods.

Respondents also aver that petitioner Martin Alagao, an officer of the Manila Police
Department, could not seize the goods in question without a search warrant. This contention cannot
be sustained. The Chief of the Manila Police Department, Ricardo G. Papa, having been deputized
in writing by the Commissioner of Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and arrests, 11 and it was his duty to make seizure,
among others, of any cargo, articles or other movable property when the same may be subject to
forfeiture or liable for any fine imposed under customs and tariff laws. 12 He could lawfully open and
examine any box, trunk, envelope or other container wherever found when he had reasonable cause
to suspect the presence therein of dutiable articles introduced into the Philippines contrary to law;
and likewise to stop, search and examine any vehicle, beast or person reasonably suspected of
holding or conveying such article as aforesaid. 13 It cannot be doubted, therefore, that petitioner
Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the search and seizure of the goods
in question. The Tariff and Customs Code authorizes him to demand assistance of any police officer
to effect said search and seizure, and the latter has the legal duty to render said assistance. 14This
was what happened precisely in the case of Lt. Martin Alagao who, with his unit, made the search
and seizure of the two trucks loaded with the nine bales of goods in question at the Agrifina Circle.
He was given authority by the Chief of Police to make the interception of the cargo. 15

Petitioner Martin Alagao and his companion policemen had authority to effect the seizure
without any search warrant issued by a competent court. The Tariff and Customs Code does not
require said warrant in the instant case. The Code authorizes persons having police authority under
Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure,
warehouse, store or building, not being a dwelling house; and also to inspect, search and examine
any vessel or aircraft and any trunk, package, or envelope or any person on board, or to stop and
search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law, without mentioning the need of a
search warrant in said cases. 16 But in the search of a dwelling house, the Code provides that said
"dwelling house may be entered and searched only upon warrant issued by a judge or justice of the
peace. . . ." 17 It is our considered view, therefor, that except in the case of the search of a dwelling
house, persons exercising police authority under the customs law may effect search and seizure
without a search warrant in the enforcement of customs laws.

Our conclusion finds support in the case of Carroll v. United States, 39 A.L.R., 790, 799,
wherein the court, considering a legal provision similar to Section 2211 of the Philippine Tariff and
Customs Code, said as follows:

Thus contemporaneously with the adoption of the 4th Amendment, we find in the first
Congress, and in the following second and fourth Congresses, a difference made as to the
necessity for a search warrant between goods subject to forfeiture, when concealed in a
dwelling house of similar place, and like goods in course of transportation and concealed in a
movable vessel, where readily they could be put out of reach of a search warrant. . . .

Again, by the 2d section of the Act of March 3, 1815 (3 Stat. at L.231, 232, chap. 94), it
was made lawful for customs officers not only to board and search vessels within their own
and adjoining districts, but also to stop, search and examine any vehicle, beast or person on
which or whom they should suspect there was merchandise which was subject to duty, or
had been introduced into the United States in any manner contrary to law, whether by the
person in charge of the vehicle or beast or otherwise, and if they should find any goods,
wares, or merchandise thereon, which they had probably cause to believe had been so
unlawfully brought into the country, to seize and secure the same, and the vehicle or beast
as well, for trial and forfeiture. This Act was renewed April 27, 1816 (3 Sta. at L. 315, chap.
100), for a year and expired. The Act of February 28, 1865, revived 2 of the Act of 1815,
above described, chap. 67, 13 Stat. at L. 441. The substance of this section was re-enacted
in the 3d section of the Act of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was thereafter
embodied in the Revised Statutes as 3061, Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed.
p. 1161. Neither 3061 nor any of its earlier counterparts has ever been attacked as
unconstitutional. Indeed, that section was referred to and treated as operative by this court in
Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27 L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .
 In the instant case, we note that petitioner Martin Alagao and his companion policemen did not
have to make any search before they seized the two trucks and their cargo. In their original petition,
and amended petition, in the court below Remedios Mago and Valentin Lanopa did not even allege
that there was a search. 18 All that they complained of was,

That while the trucks were on their way, they were intercepted without any search
warrant near the Agrifina Circle and taken to the Manila Police Department, where they were
detained.

But even if there was a search, there is still authority to the effect that no search warrant would
be needed under the circumstances obtaining in the instant case. Thus, it has been held that:

The guaranty of freedom from unreasonable searches and seizures is construed as

recognizing a necessary difference between a search of a dwelling house or other structure
in respect of which a search warrant may readily be obtained and a search of a ship,
motorboat, wagon, or automobile for contraband goods, where it is not practicable to secure
a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought. (47 Am. Jur., pp. 513-514, citing Carroll v. United States, 267
U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790; People v. Case, 320 Mich., 379, 190
N.W., 389, 27 A.L.R., 686.)

In the case of People v. Case (320 Mich., 379, 190 N.W., 389, 27 A.L.R., 686), the question
raised by defendant's counsel was whether an automobile truck or an automobile could be searched
without search warrant or other process and the goods therein seized used afterwards as evidence
in a trial for violation of the prohibition laws of the State. Same counsel contended the negative,
urging the constitutional provision forbidding unreasonable searches and seizures. The Court said:

. . . Neither our state nor the Federal Constitution directly prohibits search and seizure
without a warrant, as is sometimes asserted. Only "unreasonable" search and seizure is
forbidden. . . .

. . . The question whether a seizure or a search is unreasonable in the language of the

Constitution is a judicial and not a legislative question; but in determining whether a seizure
is or is not unreasonable, all of the circumstances under which it is made must be looked to.

The automobile is a swift and powerful vehicle of recent development, which has
multiplied by quantity production and taken possession of our highways in battalions until the
slower, animal-drawn vehicles, with their easily noted individuality, are rare. Constructed as
covered vehicles to standard form in immense quantities, and with a capacity for speed
rivaling express trains, they furnish for successful commission of crime a disguising means of
silent approach and swift escape unknown in the history of the world before their advent. The
question of their police control and reasonable search on highways or other public places is
a serious question far deeper and broader than their use in so-called "bootleging" or "rum
running," which is itself is no small matter. While a possession in the sense of private
ownership, they are but a vehicle constructed for travel and transportation on highways.
Their active use is not in homes or on private premises, the privacy of which the law
especially guards from search and seizure without process. The baffling extent to which they
are successfully utilized to facilitate commission of crime of all degrees, from those against
morality, chastity, and decency, to robbery, rape, burglary, and murder, is a matter of
common knowledge. Upon that problem a condition, and not a theory, confronts proper
administration of our criminal laws. Whether search of and seizure from an automobile upon
a highway or other public place without a search warrant is unreasonable is in its final
 analysis to be determined as a judicial question in view of all the circumstances under which
it is made.

Having declared that the seizure by the members of the Manila Police Department of the
goods in question was in accordance with law and by that seizure the Bureau of Customs had
acquired jurisdiction over the goods for the purpose of the enforcement of the customs and tariff
laws, to the exclusion of the Court of First Instance of Manila, We have thus resolved the principal
and decisive issue in the present case. We do not consider it necessary, for the purposes of this
decision, to discuss the incidental issues raised by the parties in their pleadings.

WHEREFORE, judgment is hereby rendered, as follows:

(a) Granting the writ of certiorari and prohibition prayed for by petitioners;

(b) Declaring null and void, for having been issued without jurisdiction, the order of respondent
Judge Hilarion U. Jarencio, dated March 7, 1967, in Civil Code No. 67496 of the Court of First
Instance of Manila;

(c) Declaring permanent the preliminary injunction issued by this Court on March 31, 1967
restraining respondent Judge from executing, enforcing and/or implementing his order of March 7,
1967 in Civil Case No. 67496 of the Court of First Instance of Manila, and from proceeding in any
manner in said case;

(d) Ordering the dismissal of Civil Case No. 67496 of the Court of First Instance of Manila;
and 1wph1.t

(e) Ordering the private respondent, Remedios Mago, to pay the costs.

It is so ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Sanchez, Castro, Angeles and
Fernando, JJ., concur. 1w ph1.t