Republic of the Philippines
The court a quo erred in not finding that it lacked jurisdiction
SUPREME COURT
Manila
EN BANC
G.R. No. 17584 March 8, 1922
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,
vs.
GREGORIO SANTIAGO, defendant-appellant.
L. Porter Hamilton for appellant.
Acting Attorney-General Tuason for appellee.
ROMUALDEZ, J.:
Having caused the death of Porfirio Parondo, a boy 7 years old, by striking
him with automobile that he was driving, the herein appellant was
prosecuted for the crime of homicide by reckless negligence and was
sentenced to suffer one year and one day of prision correccional, and to pay
the costs of the trial.
Not agreeable with that sentence he now comes to this court alleging that
the court below committed four errors, to wit:
1. The trial court erred in not taking judicial notice of the fact that
the appellant was being prosecuted in conformity with Act No.
2886 of the Philippine Legislature and that the Act is
unconstitutional and gave no jurisdiction in this case.
2. The lower court erred in not dismissing the complaint after the
presentation of the evidence in the case, if not before, for the
reason that said Act No. 2886 is unconstitutional and the
proceedings had in the case under the provisions of the Act
constitute a prosecution of appellant without due process of law.
3.
over the person of the accused and over the subject- matter of the
complaint.
4. The trial court erred in finding the appellant guilty of the crime
charged and in sentencing him to one year and one day of prison
correccional and to the payment of costs.
With regard to the questions of fact, we have to say that we have examined
the record and find that the conclusions of the trial judge, as contained in his
well-written decision, are sufficiently sustained by the evidence submitted.
The accused was driving an automobile at the rate of 30 miles an hour on a
highway 6 meter wide, notwithstanding the fact that he had to pass a narrow
space between a wagon standing on one side of the road and a heap of
stones on the other side where the were two young boys, the appellant did
not take the precaution required by the circumstances by slowing his
machine, and did not proceed with the vigilant care that under the
circumstances an ordinary prudent man would take in order to avoid
possible accidents that might occur, as unfortunately did occur, as his
automobile ran over the boy Porfirio Parondo who was instantly killed as
the result of the accident.
These facts are so well established in the records that there cannot be a
shade of doubt about them.
Coming now to the other assignments of error, it will be seen that they deal
with the fundamental questions as to whether or not Act No. 2886, under
which the complaint in the present case was filed, is valid and
constitutional.
This Act is attacked on account of the amendments that it introduces in
General Orders No. 58, the defense arguing that the Philippine Legislature
was, and is, not authorized to amend General Orders No. 58, as it did by
amending section 2 thereof because its provisions have the character of
constitutional law. Said section 2 provides as follows:
 All prosecutions for public offenses shall be in the name of the
United States against the persons charged with the offenses. (G. O.
No. 58, sec. 2 ).
Act No. 2886, which amends it, by virtue of which the People of the
Philippine Island is made the plaintiff in this information, contains the
following provisions in section 1:
SECTION 1. Section two of General Orders, Numbered Fifty-
eight, series of nineteen hundred, is hereby amended to read as
follows:
"SEC. 2. All prosecutions for public offenses shall be in
the name of the People of the Philippine Islands against
the persons charged with the offense."
Let us examine the question.
For practical reasons, the procedure in criminal matters is not incorporated
in the Constitutions of the States, but is left in the hand of the legislatures,
so that it falls within the realm of public statutory law.
As has been said by Chief Justice Marshall:
A constitution, to contain an accurate detail of all the Subdivisions
of which its great powers will admit, and of all the means by which
they may be carried into execution, would partake of a prolixity of
a legal code, and could scarcely be embraced by the human mind.
It would probably never be understood by the public. (M'Culloch
vs. Maryland [1819], 4 Wheat., 316, 407; 4 L. ed., 579.)
That is why, in pursuance of the Constitution of the United States, each
States, each State has the authority, under its police power, to define and
punish crimes and to lay down the rules of criminal procedure.
The states, as a part of their police power, have a large measure of
discretion in creating and defining criminal offenses. . . .
A Statute relating to criminal procedure is void as a denial of the
equal protection of the laws if it prescribes a different procedure in
the case of persons in like situation. Subject to this limitation,
however, the legislature has large measure of discretion in
prescribing the modes of criminal procedure. . . . (12 C.J., 1185,
1186. See Collins vs. Johnston, 237 U.S., 502; 35 s. Ct. Rep. 649;
59 L. ed., 1071; Shevlin-Carpenter Co. vs. Minnesota, 218 U.S.,
57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn vs. Flancders, 141
Ga., 500; 81 S.E., 205.)
This power of the States of the North American Union was also granted to
its territories such as the Philippines:
The plenary legislative power which Congress possesses over the
territories and possessions of the United States may be exercised
by that body itself, or, as is much more often the case, it may be
delegated to a local agency, such as a legislature, the organization
of which proceeds upon much the same lines as in the several
States or in Congress, which is often taken as a model, and whose
powers are limited by the Organic Act; but within the scope of
such act is has complete authority to legislate, . . . and in general,
to legislate upon all subjects within the police power of the
territory. (38 Cyc., 205-207.)
The powers of the territorial legislatures are derived from
Congress. By act of Congress their power extends "to all rightful
subjects of legislation not inconsistent with the Constitution and
laws of the United States;" and this includes the power to define
and punish crimes. (16 C. J., 62.)
And in the exercise of such powers the military government of the army of
occupation, functioning as a territorial legislature, thought it convenient to
establish new rules of procedure in criminal matters, by the issuance of
General Orders No. 58, the preamble of which reads:
In the interests of justice, and to safeguard the civil liberties of the
inhabitants of these Islands, the criminal code of procedure now in
force therein is hereby amended in certain of its important
 provisions, as indicated in the following enumerated sections.
(Emphasis ours.)
Its main purpose is, therefore, limited to criminal procedure and its intention
is to give to its provisions the effect of law in criminal matters. For that
reason it provides in section 1 that:
The following provisions shall have the force and effect of law in
criminal matters in the Philippine Islands from and after the 15th
day of May, 1900, but existing laws on the same subjects shall
remain valid except in so far as hereinafter modified or repealed
expressly or by necessary implication.
From what has been said it clearly follows that the provisions of this
General Order do not the nature of constitutional law either by reason of its
character or by reason of the authority that enacted it into law.
It cannot be said that it has acquired this character because this order was
made its own by the Congress of the United States for, as a mater of fact,
this body never adopted it as a law of its own creation either before the
promulgation of Act No. 2886, herein discussed, or, to our knowledge, to
this date.
Since the provisions of this General Order have the character of statutory
law, the power of the Legislature to amend it is self-evident, even if the
question is considered only on principle. Our present Legislature, which has
enacted Act No. 2886, the subject of our inquiry, is the legal successor to
the Military Government as a legislative body.
Since the advent of the American sovereignty in the Philippines the
legislative branch of our government has undergone transformations and has
developed itself until it attained its present form. Firstly, it was the Military
Government of the army of occupation which, in accordance with
international law and practice, was vested with legislative functions and in
fact did legislate; afterwards, complying with the instructions of President
McKinley which later were ratified by Congress (sec. 1 of the Act of July 1,
1902) the legislative powers of the Military Government were transferred to
the Philippine Commission; then, under the provisions of section 7 of the
Act of Congress of July 1, 1902, the Philippine Assembly was created and it
functioned as a colegislative body with the Philippine Commission. Finally,
by virtue of the provisions of sections 12 of the Act of Congress of August
29, 1916, known as the Jones Law, the Philippine Commission gave way to
the Philippine Senate, the Philippine Assembly became the House of
Representatives, and thus was formed the present Legislature composed of
two Houses which has enacted the aforesaid Act No. 2886.
As a matter of fact, Act No. 2886 is not the first law that amends General
Orders No. 58. The Philippine Commission, at various times, had amended
it by the enactment of laws among which we may cite Act No. 194,
regarding preliminary investigation, Act No. 440 relating to counsels de
oficio and Act No. 590 about preliminary investigations by justices of the
peace of provincial capitals. Later on, and before the enactment of Act No.
2886, herein controverted, the Legislature had also amended this General
Orders No. 58 by the enactment of Act No. 2677 regarding appeals to the
Supreme Court of causes originating in the justice of the peace courts and
by Act No. 2709 which deals with the exclusion of accused persons from
the information in order to be utilized as state's witnesses.
These amendments repeatedly made by the Philippine Commission as well
as by our present Legislature are perfectly within the scope of the powers of
the said legislative bodies as the successors of the Military Government that
promulgated General Orders No. 58.
No proof is required to demonstrate that the present Legislature had, and
had, the power to enact and amend laws. (U.S. vs. Bull. 15 Phil., 7.) That it
has the power to legislate on criminal matters is very evident from the
wording of section 7 of the Jones Law which says:
That the legislative authority herein provided shall have power,
when not inconsistent with this Act, by due enactment to amend,
alter, modify, or repeal any law, civil or criminal, continued in
force by this Act as it may from time to time see fit.
It is urged the right to prosecute and punish crimes is an attributed of
sovereignty. This assertion is right; but it is also true that by reason of the
principle of territoriality as applied in the supression, of crimes, such power
is delegated to subordinate government subdivisions such as territories. As
we have seen in the beginning, the territorial legislatures have the power to
define and punish crimes, a power also possessed by the Philippine
Legislature by virtue of the provisions of sections 7, already quoted, of the
Jones Law. These territorial governments are local agencies of the Federal
Government, wherein sovereignty resides; and when the territorial
government of the Philippines prosecutes and punishes public crimes it does
so by virtue of the authority delegated to it by the supreme power of the
Nation.
This delegation may be made either expressly as in the case of the several
States of the Union and incorporated territories like Porto Rico and Hawaii,
or tacitly as is the case with the Philippines, which is an organized territory
though not incorporated with the Union. (Malcolm, Philippine
Constitutional Law, 181-205.)
This tacit delegation to our Government needs no demonstration. As a
matter of fact, the crimes committed within our territory, even before
section 2 of General Orders No. 58 was amended, were prosecuted and
punished in this jurisdiction as is done at present; but then as now the
repression of crimes was done, and is still done, under the sovereign
authority of the United States, whose name appears as the heading in all
pleadings in criminal causes and in other judicial papers and notarial acts.
The use of such a heading is prescribed for civil cases in form 1 of section
784 of the Code of Civil Procedure; in criminal causes the constant practice
followed in this jurisdiction established its use; and in notarial matters its
use is provided by section 127 of Act No. 496. This long continued practice
in criminal matters and the legal provision relating to civil cases and
notarial acts have not been amended by any law, much less by Act No.
2886, the subject of the present inquiry.
There is not a single constitutional provision applicable to the Philippines
prescribing the name to be used as party plaintiff in criminal cases.
The fact that the political status of this country is as yet undetermined and in
a transitory stage, is, in our opinion, responsible for the fact that there is no
positive provision in our constitutional law regarding the use of the name of
the People of the Philippine Islands, as party plaintiff, in criminal
prosecutions, as is otherwise the case in the respective constitutional
charters of the States of the Union and incorporated territories — a situation
which must not be understood as depriving the Government of the
Philippines of its power, however delegated, to prosecute public crimes.
The fact is undeniable that the present government of the Philippines,
created by the Congress of the United States, is autonomous.
This autonomy of the Government of the Philippines reaches all judicial
actions, the case at bar being one of them; as an example of such autonomy,
this Government, the same as that of Hawaii and Porto Rico (People of
Porto Rico vs. Rosaly y Castillo [1913], 227 U.S., 270; 57 L. ed., 507; 33
Sup. Ct. Rep., 352) cannot be sued without its consent. (Merritt vs.
Government of the Philippine Islands, 34 Phil., 311; L. S. Moon & Co. vs.
Harrison, p. 27, ante.) The doctrine, laid down in these cases, acknowledges
the prerogative of personality in the Government of the Philippines, which,
if it is sufficient to shield it from any responsibility in court in its own name
unless it consents thereto, it should be also, as sufficiently authoritative in
law, to give that government the right to prosecute in court in its own name
whomsoever violates within its territory the penal laws in force therein.
However, limiting ourselves to the question relative to the form of the
complaint in criminal matters, it is within the power of the Legislature to
prescribe the form of the criminal complaint as long as the constitutional
provision of the accused to be informed of the nature of the accusation is
not violated.
Under the Constitution of the United States and by like provisions
in the constitutions of the various states, the accused is entitled to
be informed of the nature and cause of the accusation against him .
..
It is within the power of the legislatures under such a constitutional
provision to prescribe the form of the indictment or information,
and such form may omit averments regarded as necessary at
common law. (22 Cyc., 285.)
All these considerations a priori are strengthened a posteriori by the
important reason disclosed by the following fact — that the Congress has
tacitly approved Act No. 2886. Both the Act of Congress of July 1, 1902,
section 86, and the Jones Law, last paragraph of section 19, provide that all
the laws enacted by the Government of the Philippines or its Legislature
shall be forwarded to the Congress of the United States, which body
reserves the right and power to annul them. And presuming, as legally we
must, that the provisions of these laws have been complied with, it is
undisputed that the Congress of the United States did not annul any of those
acts already adverted to — Nos. 194, 440, 490 (of the Philippine
Commission), and 2677, 2709 and the one now in question No. 2886 (of the
present Legislature) — all of which were amendatory of General Orders No.
58. The Act now under discussion (No. 2886) took effect on February 24,
1920, and the criminal complaint in this case was filed on May 10, 1920.
The silence of Congress regarding those laws amendatory of the said
General Order must be considered as an act of approval.
violative of any constitutional provisions and that the court a quo did not
commit any of the errors assigned.
The sentence appealed from is hereby affirmed, the appellant being
furthermore sentenced to the accessory penalties prescribed in article 61 of
the Penal Code, and to indemnify the heirs of the deceased in the sum of
P1,000 and to the payment of the costs of both instances. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ., concur.
Ostrand and Johns, JJ., concur in the result.

If Congress fails to notice or take action on any territorial

legislation the reasonable inference is that it approves such act. (26
R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L. ed.]
659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57 [L.
ed.], 960; Nixon vs. Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A., Republic of the Philippines
315.) SUPREME COURT
Manila
Furthermore, supposing for the sake of argument, that the mention of the
People of the Philippine Islands as plaintiff in the title of the information EN BANC
constitutes a vice or defect, the same is not fatal when, as in the present
case, it was not objected to in the court below. G.R. No. L-11676 October 17, 1916

An indictment must, in many states under express statutory or THE UNITED STATES, plaintiff-appellee,
constitutional provision, show by its title or by proper recitals in vs.
the caption or elsewhere that the prosecution is in the name and by ANDRES PABLO, defendant-appellant.
the authority of the state, the commonwealth, or the people of the
state, according to the practice in the particular jurisdictions; but Alfonso E. Mendoza for appellant.
omissions or defects in this respect may be supplied or cured by Attorney-General Avanceña for appellee.
other parts of the records, and the omissions of such a recital or
defects therein, even when required by the constitution or by
statute, is a defect of form within a statute requiring exceptions for
defect of form to be made before trial. (23 Cyc., 237, 238.)

We hold that the provisions of sections 2 of General Orders No. 58, as
amended by Act No. 2886, do not partake of the same character as the
provisions of a constitution; that the said Act No. 2886 is valid and is not
TORRES, J.:
At about noon of the 21st of October, 1915, Andres Pablo, a policeman of
the municipality of Balanga, went by order of his chief to the barrio of Tuyo
to raid a jueteng game which, according to the information lodged, was
being conducted in that place; but before the said officer arrived there the
players, perhaps advised of his approach by a spy, left and ran away;
however, on his arrival at a vacant lot the defendant there found Francisco
Dato and, at a short distance away, a low table. After a search of the
premises he also found thereon a tambiolo (receptacle) and 37 bolas (balls).
Notwithstanding that the officer had seen the men Maximo Malicsi and
Antonio Rodrigo leave the said lot, yet, as at first he had seen no material
proof that the game was being played, he refrained from arresting them, and
on leaving the place only arrested Francisco Daro, who had remained there.
In reporting to his chief what had occurred, the policeman presented a
memorandum containing the following statement: "In the barrio of Tuyo I
raided a jueteng na bilat game, seized a tambiolo and bolas, and saw
the cabecillas Maximo MAlicsi and Antonio Rodrigo and the gambler
Francisco Dato. I saw the two cabecillas escape."
In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a
complaint in the court of justice of the peace charging the said Rodrigo,
Malicsi, and Dato with having gambled at jueteng, in violation of municipal
ordinance No. 5. As a result of this complaint the accused were arrested, but
were afterwards admitted to bail.
At the hearing of the case Francisco Dato pleaded guilty. The other two
accused, Maximo Malicsi and Antonio Rodrigo, pleaded not guilty;
therefore, during the trial the chief of police presented the memorandum
exhibited by the policeman Andres Pablo, who testified under oath that on
the date mentioned he and Tomas de Leon went to the said barrio to raid
a jueteng game, but that before they arrived there they saw from afar that
some persons started to run toward the hills; that when witness and his
companion arrived at a vacant lot they saw Francisco Dato and a low table
there, and the table caused them to suspect that a jueteng game was being
carried on; that in fact they did find on one side of the lot a tambiolo and
37 bolas, but that they did not see the accused Rodrigo and Malicsi on the
said lot, nor did they see them run; and that only afterwards did the witness
learn that these latter were the cabecillas or ringleaders in the jueteng game,
from information given him by an unknown person. In view of this
testimony by the police officer who made the arrest and of the other
evidence adduced at the trial the court acquitted the defendants Antonio
Rodrigo and Maximo Malicsi and sentenced only Francisco Dato, as a
gambler.
Before the case came to trial in the justice of the peace court the policeman
Andres Pablo had an interview and conference with the accused Malicsi and
ROdrigo in the house of Valentin Sioson. On this occasion he was
instructed not to testify against Malicsi and Rodrigo, and in fact received
through Gregorio Ganzon the sum of P5.
By reason of the foregoing and after making a preliminary investigation the
provincial fiscal, on December 1, 1915, filed an information in the Court of
First Instance of Bataan charging Andres Pablo with the crime of perjury,
under the provisions of section 3 of Act No. 1697. The following is an
extract from the complaint:
That on or about November 6, 1915, in the municipality of
Balanga, Bataan, P.I., and within the jurisdiction of this court, the
said accused, Andres Pablo, during the hearing in the justice of the
peace court of Balanga of the criminal cause No. 787, entitled the
United States vs. Antonio Rodrigo and Maximo Malicsi, for
violation of Municipal Ordinance No. 5 of the municipality of
Balanga, did, willfully, unlawfully and feloniously affirm and
swear in legal form before the justice of the peace court as follow:
`We did not there overtake the accused Antonio Rodrigo and
Maximo Malicsi, nor did we even see them run,' the said statement
being utterly false, as the accused well knew that it was, and
material to the decision of the said criminal cause No. 787, United
States vs. Antonio Rodrigo and Maximo Malicsi. An act committed
with violation of law.
The case came to trial and on December 28, 1915, the court rendered
judgment therein sentencing the defendant to the penalty of two years'
imprisonment, to pay a fine of P100 and, in case of insolvency, to the
corresponding subsidiary imprisonment, and to pay the costs. The defendant
was also disqualified from thereafter holding any public office and from
testifying in the courts of the Philippine Islands until the said
disqualification should be removed. From this judgment he appealed.
Francisco Dato, on testifying as a witness, said that when the policemen
Andres Pablo and Tomas de Leon arrived at the place where the jueteng was
being played, they found the defendant gamblers, Malicsi and Rodrigo; that,
prior to the hearing of the case in the justice of the peace court, Malicsi and
Rodrigo ordered him to call Andres Pablo, who, together with witness, went
to the house of Valentin Sioson, where they held a conference; that witness
pleaded guilty in the justice of the peace court, in fulfillment of his part of
an agreement made between himself and his two coaccused, Malicsi and
Rodrigo, who promised him that they would support his family during the
time he might be a prisoner in jail; that Andres Pablo did not know that they
were gamblers, because he did not find them in the place where the game
was in progress, but that when witness was being taken to the municipal
building by the policemen he told them who the gamblers were who had run
away and whom Andres Pablo could have seen.
Maximo Malicsi corroborated the foregoing testimony and further stated
that, on the arrival of the policemen who made the arrest and while they
were looking for the tambiolo, he succeeded in escaping; that Andres Pablo
had known him for a long time and could have arrested him had he wished
to do so; that prior to the hearing he and his codefendants, ROdrigo and
Dato, did in fact meet in the house of Valentin Sioson, on which occasion
they agreed that they would give the policemen Andres Pablo P20, provided
witness and Rodrigo were excluded from the charge; and that only P15 was
delivered to the said Pablo, through Gregorio Ganzon. This statement was
corroborated by the latter, though he said nothing about what amount of
money he delivered to the policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked by
the justice of the peace how he could have seen Maximo Malicsi and
Antonio Rodrigo, he replied that he did not see them at the place where the
game was being conducted nor did he see them run away from there, for he
only found the table, the tambiolo, the bolas, and Francisco Dato; that he
did not surprise the game because the players ran away before he arrived on
the lot where, after fifteen minutes' search, he found only the tambiolo and
the bolas; that on arriving at the place where the game was played, they
found only Francisco Dato and some women in the Street, and as Dato had
already gone away, witness' companion, the policeman Tomas de Leon, got
on his bicycle and went after him; and that he found the tambiolo at a
distance of about 6 meters from a low table standing on the lot.
From the facts above related, it is concluded that the defendant Andres
Pablo, who pleaded not guilty, falsely testified under oath in the justice of
the peace court of Balanga, Bataan, in saying he had not seen the alleged
gamblers Maximo Malicsi and Antonio Rodrigo in the place where,
according to the complaint filed, the game of jueteng was being played and
where the defendant and his companion, the policeman Tomas de Leon, had
found a table, tambiolo and bolas, used in the game of jueteng, while it was
proved at the trial that he did not them and did overtake them while they
were still in the place where the game was being played. But
notwithstanding his having seen them there, upon testifying in the cause
prosecuted against these men and another for gambling, he stated that he
had not seen them there, knowing that he was not telling the truth and was
false to the oath he had taken, and he did so willfully and deliberately on
account of his agreement with the men, Malicsi and Rodrigo, and in
consideration of a bribe of P15 which he had received in payment for his
false testimony he afterwards gave.
Francisco Dato and Gregorio Ganzon corroborated the assertion that the
policeman Andres Pablo undertook to exclude the gamblers, Malicsi and
Rodrigo, from the charge and from his testimony in consideration for P15
which he received through Gregorio Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards
convicted under Act No. 1697, which (according to the principle laid down
by this court in various decisions that are already well-settled rules of law)
repealed the provisions contained in articles 318 to 324 of the Penal Code
relative to false testimony.
By the second paragraph of the final section of the last article of the
Administrative Code, or Act No. 2657, there was repealed, among the other
statutes therein mentioned, the said Act No. 1697 relating to perjury, and
the repealing clause of the said Administrative Code does not say under
what other penal law in force the crime of false testimony, at least, if not
that of perjury, shall be punished.
Under these circumstances, may the crime of perjury or of false testimony
go unpunished, and is there no penal sanction whatever in this country for
this crime? May the truth be freely perverted in testimony given under oath
and which, for the very reason that it may save a guilty person from
punishment, may also result in the conviction and punishment of an
innocent person? If all this is not possible and is not right before the law and
good morals in a society of even mediocre culture, it must be acknowledged
that it is imperatively necessary to punish the crime of perjury or of false
testimony — a crime which can produce incalculable and far-reaching harm
to society and cause infinite disturbance of social order.
The right of prosecution and punishment for a crime is one of the attributes
that by a natural law belongs to the sovereign power instinctively charged
by the common will of the members of society to look after, guard and
defend the interests of the community, the individual and social rights and
the liberties of every citizen and the guaranty of the exercise of his rights.
The power to punish evildoers has never been attacked or challenged, as the
necessity for its existence has been recognized even by the most backward
peoples. At times the criticism has been made that certain penalties are
cruel, barbarous, and atrocious; at other, that they are light and inadequate
to the nature and gravity of the offense, but the imposition of punishment is
admitted to be just by the whole human race, and even barbarians and
savages themselves, who are ignorant of all civilization, are no
exception.lawphil.net
Notwithstanding that the said Act No. 1697 (which, as interpreted by this
court in its decisions, was deemed to have repealed the aforementioned
article of the Penal Code relating to false testimony, comprised within the
term of perjury) did not expressly repeal the said articles of the Penal Code;
and as the said final article of the Administrative Code, in totally repealing
Act No. 1697, does not explicitly provide that the mentioned articles of the
Penal Code are also repealed, the will of the legislation not being expressly
and clearly stated with respect to the complete or partial repeal of the said
articles of the Penal Code, in the manner that it has totally repealed the said
Act No. 1697 relating its perjury; and, furthermore, as it is imperative that
society punish those of its members who are guilty of perjury or false
testimony, and it cannot be conceived that these crimes should go
unpunished or be freely committed without punishment of any kind, it must
be conceded that there must be in this country some prior, preexistent law
that punishes perjury or false testimony.
There certainly are laws which deal with perjury or false testimony, like
Law 7 et seq. of Title 2, third Partida.
However, since the Penal Code went into force, the crime of false testimony
has been punished under the said articles of the said Code, which as we
have already said, have not been specifically repealed by the said Act No.
1697, but since its enactment, have not been applied, by the mere
interpretation given to them by this court in its decisions; yet, from the
moment that Act was repealed by the Administrative Code, the needs of
society have made it necessary that the said articles 318 to 324 should be
deemed to be in force, inasmuch as the Administrative Code, in repealing
the said Act relating to perjury, has not explicitly provided that the said
articles of the Penal Code have likewise been repealed.
This manner of understanding and construing the statutes applicable to the
crime of false testimony or perjury is in harmony with the provision of Law
11, Title 2, Book 3, of the Novisima Recopilacion which says::
All the laws of the kingdom, not expressly repealed by other
subsequent laws, must be literally obeyed and the excuse that they
are not in use cannot avail; for the Catholic kings and their
successors so ordered in numerous laws, and so also have I ordered
on different occasions, and even though they were repealed, it is
seen that they have been revived by the decree which I issued in
conformity with them although they were not expressly designated.
The council will be informed thereof and will take account of the
importance of the matter.
It is, then, assumed that the said articles of the Penal Code are in force and
are properly applicable to crimes of false testimony. Therefore, in
consideration of the fact that in the case at bar the evidence shows it to have
been duly proven that the defendant, Andres Pablo, in testifying in the cause
prosecuted for gambling at jueteng, perverted the truth, for the purpose of
favoring the alleged gamblers, Maximo Malicsi and Antonio Rodrigo, with
the aggravating circumstance of the crime being committed through bribery,
for it was also proved that the defendant Pablo received P15 in order that he
should make no mention of the said two gamblers in his sworn testimony,
whereby he knowingly perverted the truth, we hold that, in the commission
of the crime of false testimony, there concurred the aggravating
circumstance of price or reward, No. 3 of article 10 of the Code, with no
mitigating circumstance to offset the effects of the said aggravating one;
wherefore the defendant has incurred the maximum period of the penalty
of arresto mayor in its maximum degree to prision correccional in its
medium degree, and a fine.
For the foregoing reasons, we hereby reverse the judgment appealed from
and sentence Andres Pablo to the penalty of two years four months and one
day of prision correccional, to pay a fine of 1,000 pesetas, and, in case of
insolvency, to suffer the corresponding subsidiary imprisonment, which
shall not exceed one-third of the principal penalty. He shall also pay the
costs of both instances. So ordered.
Johnson, Carson, Trent and Araullo, JJ., concur.
Moreland, J., concurs in the result .
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 448 September 20, 1901
THE UNITED STATES, complainant-appellee,
vs.
PHILIP K. SWEET, defendant-appellant.
Theofilus B. Steele, for appellant.
Office of the Solicitor-General Araneta, for appellee.
LADD, J.:
The offense charged in the complaint is punishable under the Penal Code
now in force by arresto mayor and a fine of from 325 to 3,250 pesetas. (Art.
418.) By Act No. 136 of the United States Philippine Commission, section
56 (6), Courts of First Instance are given original jurisdiction "in all
criminal cases in which a penalty of more than six months' imprisonment or
a fine exceeding one hundred dollars may be imposed." The offense was
therefore cognizable by the court below unless the fact that the appellant
was at the time of its alleged commission an employee of the United States
military authorities in the Philippine Islands, and the further fact that the
person upon whom it is alleged to have been committed was a prisoner of
war in the custody of such authorities, are sufficient to deprive it of
jurisdiction. We must assume that both these facts are true, as found, either
upon sufficient evidence or upon the admissions of the prosecuting attorney,
by the court below.
Setting aside the claim that the appellant was "acting in the line of duty" at
the time the alleged offense was committed, which is not supported by the
findings or by any evidence which appears in the record, the contention that
the court was without jurisdiction, as we understand it, is reducible to two
propositions: First, that an assault committed by a soldier or military
employee upon a prisoner of war is not an offense under the Penal Code;
and second, that if it is an offense under the Code, nevertheless the military
character sustained by the person charged with the offense at the time of its
commission exempts him from the ordinary jurisdiction of the civil
tribunals.
As to the first proposition, it is true, as pointed out by counsel, that an
assault of the character charged in the complaint committed in time of war
by a military person upon a prisoner of war is punishable as an offense
under the Spanish Code of Military Justice (art. 232), and it is also true that
under the provisions of the same Code (arts. 4, 5) the military tribunals
have, with certain exceptions which it is not material to state, exclusive
cognizance of all offenses, whether of a purely military nature or otherwise,
committed by military persons. But the fact that the acts charged in the
complaint would be punishable as an offense under the Spanish military
legislation does not render them any less an offense under the article of the
Penal Code above cited. There is nothing in the language of that article to
indicate that it does not apply to all persons within the territorial jurisdiction
of the law. Under articles 4 and 5 of the Code of Military Justice above
cited a military person could not be brought to trial before a civil tribunal
for an assault upon a prisoner of war, but by the commission of that offense
he incurred a criminal responsibility for which he was amenable only to the
military jurisdiction. That criminal responsibility, however, arose from an
infraction of the general penal laws, although the same acts, viewed in
another aspect, might also, if committed in time of war, constitute an
infraction of the military code. We are unable to see how these provisions of
the Spanish Military Code, no longer in force here and which indeed never
had any application to the Army of the United States, can in any possible
view have the effect claimed for them by counsel for the appellant.
The second question is, Does the fact that the alleged offense was
committed by an employee of the United States military authorities deprive
the court of jurisdiction? We have been cited to no provision in the
legislation of Congress, and to none in the local legislation, which has the
effect of limiting, as respects employees of the United States military
establishment, the general jurisdiction conferred upon the Courts of First
Instance by Act No. 136 of the United States Philippine Commission above
cited, and we are not aware of the existence of any such provision. The case
is therefore open to the application of the general principle that the
jurisdiction of the civil tribunals is unaffected by the military or other
special character of the person brought before them for trial, a principle
firmly established in the law of England and America and which must, we
think, prevail under any system of jurisprudence unless controlled by
express legislation to the contrary. (United States vs. Clark, 31 Fed. Rep.,
710.) The appellant's claim that the acts alleged to constitute the offense
were performed by him in the execution of the orders of his military
superiors may, if true, be available by way of defense upon the merits in the
trial in the court below, but can not under this principle affect the right of
that court to take jurisdiction of the case.
Whether under a similar state of facts to that which appears in this case a
court of one of the United States would have jurisdiction to try the offender
against the State laws (see In re Fair, 100 Fed. Rep., 149), it is not necessary
to consider. The present is not a case where the courts of one government
are attempting to exercise jurisdiction over the military agents or employees
of another and distinct government, because the court asserting jurisdiction
here derives its existence and powers from the same Government under the
authority of which the acts alleged to constitute the offense are claimed to
have been performed.
It may be proper to add that there is no actual conflict between the two
jurisdictions in the present case nor any claim of jurisdiction on the part of
the military tribunals. On the contrary it appears from the findings of the
court below that the complaint was entered by order of the commanding
general of the Division of the Philippines, a fact not important, perhaps, as
regards the technical question of jurisdiction, but which relieves the case
from any practical embarrassment which might result from a claim on the
part of the military tribunals to exclusive cognizance of the offense.
The order of the court below is affirmed with costs to the appellant.
Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.
Separate Opinions
COOPER, J., concurring:
I concur in the result of the decision of the court, but am not prepared to
assent to all that is said in the opinion. An offense charged against a military
officer, acting under the order of his superior, unless the illegality of the
order is so clearly shown on its face that a man of ordinary sense and
understanding would know when he heard it read or given that the order
was illegal, and when the alleged criminal act was done within the scope of
his authority as such officer, in good faith and without malice, and where
the offense is against the military law — that is, such law as relates to the
discipline and efficiency of the Army, or rules and orders promulgated by
the Secretary of War to aid military officers in the proper enforcement of
the custody of prisoners — is not within the jurisdiction of the courts of the
Civil Government. (In re Fair, 100 Fed. Rep., 149.) The civil courts,
however, may examine the evidence for the purpose of determining whether
the act alleged to be criminal was done in the performance of duty under the
circumstances above indicated, but should cease to exercise jurisdiction
upon such facts appearing.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5887 December 16, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First Instance
of Cebu, stated that he "carried, kept, possessed and had in his possession
and control, 96 kilogrammes of opium," and that "he had been surprised in
the act of selling 1,000 pesos worth prepared opium."
The defense presented a demurrer based on two grounds, the second of
which was the more than one crime was charged in the complaint. The
demurrer was sustained, as the court found that the complaint contained two
charges, one, for the unlawful possession of opium, and the other, for the
unlawful sale of opium, and, consequence of that ruling, it ordered that the
fiscal should separated one charge from the other and file a complaint for
each violation; this, the fiscal did, and this cause concerns only the unlawful
possession of opium. It is registered as No. 375, in the Court of First
Instance of Cebu, and as No. 5887 on the general docket of this court.
The facts of the case are contained in the following finding of the trial court:
The evidence, it says, shows that between 11 and 12 o'clock a. m.
on the present month (stated as August 19, 1909), several persons,
among them Messrs. Jacks and Milliron, chief of the department of
the port of Cebu and internal-revenue agent of Cebu, respectively,
went abroad the steamship Erroll to inspect and search its cargo,
and found, first in a cabin near the saloon, one sack (Exhibit A)
and afterwards in the hold, another sack (Exhibit B). The sack
referred to as Exhibit A contained 49 cans of opium, and the other,
Exhibit B, the larger sack, also contained several cans of the same
substance. The hold, in which the sack mentioned in Exhibit B was
found, was under the defendant's control, who moreover, freely
and of his own will and accord admitted that this sack, as well as
the other referred to in Exhibit B and found in the cabin, belonged
to him. The said defendant also stated, freely and voluntarily, that
he had bought these sacks of opium, in Hongkong with the
intention of selling them as contraband in Mexico or Vera Cruz,
and that, as his hold had already been searched several times for
opium, he ordered two other Chinamen to keep the sack. Exhibit
A.
It is to be taken into account that the two sacks of opium, designated as
Exhibits A and B, properly constitute the corpus delicti. Moreover, another
lot of four cans of opium, marked, as Exhibit C, was the subject matter of
investigation at the trial, and with respect to which the chief of the
department of the port of Cebu testified that they were found in the part of
the ship where the firemen habitually sleep, and that they were delivered to
the first officer of the ship to be returned to the said firemen after the vessel
should have left the Philippines, because the firemen and crew of foreign
vessels, pursuant to the instructions he had from the Manila custom-house,
were permitted to retain certain amounts of opium, always provided it
should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus
delicti and important as evidence in this cause. With regard to this the
internal-revenue agent testified as follows:itc-alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the defendant
by a secret-service agent and taken to the office of the governor to
prove that the accused had opium in his possession to sell.
On motion by the defense, the court ruled that this answer might be stricken
out "because it refers to a sale." But, with respect to this answer, the chief of
the department of customs had already given this testimony, to wit:
FISCAL. Who asked you to search the vessel?
 WITNESS. The internal-revenue agent came to my office and said
that a party brought him a sample of opium and that the same party
knew that there was more opium on board the steamer, and the
agent asked that the vessel be searched.
The defense moved that this testimony be rejected, on the ground of its
being hearsay evidence, and the court only ordered that the part thereof
"that there was more opium, on board the vessel" be stricken out.
The defense, to abbreviate proceedings, admitted that the receptacles
mentioned as Exhibits A, B, and C, contained opium and were found on
board the steamship Erroll, a vessel of English nationality, and that it was
true that the defendant stated that these sacks of opium were his and that he
had them in his possession.
According to the testimony of the internal-revenue agent, the defendant
stated to him, in the presence of the provincial fiscal, of a Chinese
interpreter (who afterwards was not needed, because the defendant spoke
English), the warden of the jail, and four guards, that the opium seized in
the vessel had been bought by him in Hongkong, at three pesos for each
round can and five pesos for each one of the others, for the purpose of
selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the
15th the vessel arrived at Cebu, and on the same day he sold opium; that he
had tried to sell opium for P16 a can; that he had a contract to sell an
amount of the value of about P500; that the opium found in the room of the
other two Chinamen prosecuted in another cause, was his, and that he had
left it in their stateroom to avoid its being found in his room, which had
already been searched many times; and that, according to the defendant, the
contents of the large sack was 80 cans of opium, and of the small one, 49,
and the total number, 129.
It was established that the steamship Erroll was of English nationality, that
it came from Hongkong, and that it was bound for Mexico, via the call ports
of Manila and Cebu.
The defense moved for a dismissal of the case, on the grounds that the court
had no jurisdiction to try the same and the facts concerned therein did not
constitute a crime. The fiscal, at the conclusion of his argument, asked that
the maximum penalty of the law be imposed upon the defendant, in view of
the considerable amount of opium seized. The court ruled that it did not lack
jurisdiction, inasmuch as the crime had been committed within its district,
on the wharf of Cebu.
The court sentenced the defendant to five years' imprisonment, to pay a fine
of P10,000, with additional subsidiary imprisonment in case of insolvency,
though not to exceed one third of the principal penalty, and to the payment
of the costs. It further ordered the confiscation, in favor of the Insular
Government, of the exhibits presented in the case, and that, in the event of
an appeal being taken or a bond given, or when the sentenced should have
been served, the defendant be not released from custody, but turned over to
the customs authorities for the purpose of the fulfillment of the existing
laws on immigration.
From this judgment, the defendant appealed to this court.lawphi1.net
The appeal having been heard, together with the allegations made therein by
the parties, it is found: That, although the mere possession of a thing of
prohibited use in these Islands, aboard a foreign vessel in transit, in any of
their ports, does not, as a general rule, constitute a crime triable by the
courts of this country, on account of such vessel being considered as an
extension of its own nationality, the same rule does not apply when the
article, whose use is prohibited within the Philippine Islands, in the present
case a can of opium, is landed from the vessel upon Philippine soil, thus
committing an open violation of the laws of the land, with respect to which,
as it is a violation of the penal law in force at the place of the commission of
the crime, only the court established in that said place itself had competent
jurisdiction, in the absence of an agreement under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized,
the subject matter of the present case, was considerable, it does not appear
that, on such account, the two penalties fixed by the law on the subject,
should be imposed in the maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six months
and P1,000, respectively, we affirm in all other respects the judgment
appealed from, with the costs of this instance against the appellant. So
ordered.
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Cebu
finding the defendant guilty of a violation of section 4 of Act No. 2381 (the
Opium Law), and sentencing him to two years imprisonment, to pay a fine
of P300 or to suffer subsidiary imprisonment in case of insolvency, and to
pay the costs.
The following facts are fully proven: The defendant is a subject of China
employed as a fireman on the steamship Shun Chang. The Shun Chang is a
foreign steamer which arrived at the port of Cebu on April 25, 1917, after a
voyage direct from the port of Saigon. The defendant bought eight cans of
opium in Saigon, brought them on board the steamship Shun Chang, and
had them in his possession during the trip from Saigon to Cebu. When the
steamer anchored in the port of Cebu on April 25, 1917, the authorities on
making a search found the eight cans of opium above mentioned hidden in
the ashes below the boiler of the steamer's engine. The defendant confessed
that he was the owner of this opium, and that he had purchased it in Saigon.
He did not confess, however, as to his purpose in buying the opium. He did
not say that it was his intention to import the prohibited drug into the
Philippine Islands. No other evidence direct or indirect, to show that the
intention of the accused was to import illegally this opium into the
Philippine Islands, was introduced.
Has the crime of illegal importation of opium into the Philippine Islands
been proven?
Two decisions of this Court are cited in the judgment of the trial court, but
with the intimation that there exists inconsistently between the doctrines
laid down in the two cases. However, neither decision is directly a
precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the
opinion handed down by the Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in
these Islands, aboard a foreign vessel in transit, in any of their
ports, does not, as a general rule, constitute a crime triable by the
courts of this country, on account of such vessel being considered
as an extension of its own nationality, the same rule does no apply
when the article, whose use is prohibited within the Philippine
Islands, in the present case a can of opium, is landed from the
vessel upon Philippine soil, thus committing an open violation of
the laws of the land, with respect to which, as it is a violation of the
penal law in force at the place of the commission of the crime, only
the court established in the said place itself has competent
jurisdiction, in the absence of an agreement under an international
treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts
in the present instance is readily observable. In the Look Chaw case, the
charge case the illegal possession and sale of opium — in the present case
the charge as illegal importation of opium; in the Look Chaw case the
foreign vessel was in transit — in the present case the foreign vessel was
not in transit; in the Look Chaw case the opium was landed from the vessel
upon Philippine soil — in the present case of United States vs. Jose ([1916],
34 Phil., 840), the main point, and the one on which resolution turned, was
that in a prosecution based on the illegal importation of opium or other
prohibited drug, the Government must prove, or offer evidence sufficient to
raise a presumption, that the vessel from which the drug is discharged came
into Philippine waters from a foreign country with the drug on board. In the
Jose case, the defendants were acquitted because it was not proved that the
opium was imported from a foreign country; in the present case there is no
question but what the opium came from Saigon to Cebu. However, in the
opinion in the Jose case, we find the following which may be obiter dicta,
but which at least is interesting as showing the view of the writer of the
opinion:
The importation was complete, to say the least, when the ship
carrying it anchored in Subic Bay. It was not necessary that the
opium discharged or that it be taken from the ship. It was sufficient
that the opium was brought into the waters of the Philippine
Islands on a boat destined for a Philippine port and which
subsequently anchored in a port of the Philippine Islands with
intent to discharge its cargo.
otherwise. Applied to the facts herein, it would be absurb to think that the
accused was merely carrying opium back and forth between Saigon and
Cebu for the mere pleasure of so doing. It would likewise be impossible to
conceive that the accused needed so large an amount of opium for his
personal use. No better explanation being possible, the logical deduction is
that the defendant intended this opium to be brought into the Philippine
Islands. We accordingly find that there was illegal importation of opium
from a foreign country into the Philippine Islands. To anticipate any
possible misunderstanding, let it be said that these statements do not relate
to foreign vessels in transit, a situation not present.
The defendant and appellant, having been proved guilty beyond a
reasonable doubt as charged and the sentence of the trial court being within
the limits provided by law, it results that the judgment must be affirmed
with the costs of this instance against the appellant. So ordered.
Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.

Resolving whatever doubt was exist as to the authority of the views just
quoted, we return to an examination of the applicable provisions of the law.
It is to be noted that section 4 of Act No. 2381 begins, "Any person who
shall unlawfully import or bring any prohibited drug into the Philippine
Islands." "Import" and "bring" are synonymous terms. The Federal Courts
of the United States have held that the mere act of going into a port, without
breaking bulk, is prima facie evidence of importation. (The Mary [U. S.], 16 Republic of the Philippines
Fed. Cas., 932, 933.) And again, the importation is not the making entry of SUPREME COURT
goods at the custom house, but merely the bringing them into port; and the Manila
importation is complete before entry of the Custom House. (U. S. vs. Lyman
[U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As
EN BANC
applied to the Opium Law, we expressly hold that any person unlawfully
imports or brings any prohibited drug into the Philippine Islands, when the
prohibited drug is found under this person's control on a vessel which has G.R. No. 17958 February 27, 1922
come direct from a foreign country and is within the jurisdictional limits of
the Philippine Islands. In such case, a person is guilty of illegal importation
of the drug unless contrary circumstances exist or the defense proves
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, Avanceña, Villamor, Ostrand, Johns and
Romualdez, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,
vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the
Court of First Instance of Manila, sustaining the demurrer presented by the
defendant to the information that initiated this case and in which the
appellee is accused of having illegally smoked opium, aboard the merchant
vessel Changsa of English nationality while said vessel was anchored in
Manila Bay two and a half miles from the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court,
which so held and dismissed the case.
The question that presents itself for our consideration is whether such ruling
is erroneous or not; and it will or will not be erroneous according as said
court has or has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction
over crime, like the one herein involved, committed aboard merchant
vessels anchored in our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with
International Law; to wit, the French rule, according to which crimes
committed aboard a foreign merchant vessels should not be prosecuted in
the courts of the country within whose territorial jurisdiction they were
committed, unless their commission affects the peace and security of the
territory; and the English rule, based on the territorial principle and
followed in the United States, according to which, crimes perpetrated under
such circumstances are in general triable in the courts of the country within
territory they were committed. Of this two rules, it is the last one that
obtains in this jurisdiction, because at present the theories and jurisprudence
prevailing in the United States on this matter are authority in the Philippines
which is now a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch
[U. S.], 116), Chief Justice Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would
be obviously inconvenient and dangerous to society, and would
subject the laws to continual infraction, and the government to
degradation, if such individuals or merchants did not owe
temporary and local allegiance, and were not amenable to the
jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an
offense or crime committed on the high seas or within the
territorial waters of any other country, but when she came within
three miles of a line drawn from the headlands, which embrace the
entrance to Manila Bay, she was within territorial waters, and a
new set of principles became applicable. (Wheaton, International
Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs.
490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew
were then subject to the jurisdiction of the territorial sovereign
 subject to such limitations as have been conceded by that
sovereignty through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali
and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was
said that:
. . . The principle which governs the whole matter is this: Disorder
which disturb only the peace of the ship or those on board are to be
dealt with exclusively by the sovereignty of the home of the ship,
but those which disturb the public peace may be suppressed, and, if
need be, the offenders punished by the proper authorities of the
local jurisdiction. It may not be easy at all times to determine
which of the two jurisdictions a particular act of disorder belongs.
Much will undoubtedly depend on the attending circumstances of
the particular case, but all must concede that felonious homicide is
a subject for the local jurisdiction, and that if the proper authorities
are proceeding with the case in the regular way the consul has no
right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the
Philippine Islands, aboard a foreign vessel in transit in any local
port, does not, as a general rule, constitute a crime triable by the
courts of the Islands, such vessels being considered as an extension
of its own nationality, the same rule does not apply when the
article, the use of which is prohibited in the Islands, is landed from
the vessels upon Philippine soil; in such a case an open violation of
the laws of the land is committed with respect to which, as it is a
violation of the penal law in force at the place of the commission
of the crime, no court other than that established in the said place
has jurisdiction of the offense, in the absence of an agreement
under an international treaty.
As to whether the United States has ever consented by treaty or otherwise to
renouncing such jurisdiction or a part thereof, we find nothing to this effect
so far as England is concerned, to which nation the ship where the crime in
question was committed belongs. Besides, in his work "Treaties,
Conventions, etc.," volume 1, page 625, Malloy says the following:
There shall be between the territories of the United States of
America, and all the territories of His Britanic Majesty in Europe, a
reciprocal liberty of commerce. The inhabitants of the two
countries, respectively, shall have liberty freely and securely to
come with their ships and cargoes to all such places, ports and
rivers, in the territories aforesaid, to which other foreigners are
permitted to come, to enter into the same, and to remain and reside
in any parts of the said territories, respectively; also to hire and
occupy houses and warehouses for the purposes of their commerce;
and, generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and security
for their commerce, but subject always to the laws and statutes of
the two countries, respectively. (Art. 1, Commerce and Navigation
Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in
transit was held by this court not triable by or courts, because it being the
primary object of our Opium Law to protect the inhabitants of the
Philippines against the disastrous effects entailed by the use of this drug, its
mere possession in such a ship, without being used in our territory, does not
being about in the said territory those effects that our statute contemplates
avoiding. Hence such a mere possession is not considered a disturbance of
the public order.
But to smoke opium within our territorial limits, even though aboard a
foreign merchant ship, is certainly a breach of the public order here
established, because it causes such drug to produce its pernicious effects
within our territory. It seriously contravenes the purpose that our
Legislature has in mind in enacting the aforesaid repressive statute.
Moreover, as the Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a
foreign vessel at anchor in the port of Manila in open defiance of
the local authorities, who are impotent to lay hands on him, is
simply subversive of public order. It requires no unusual stretch of
the imagination to conceive that a foreign ship may come into the
 port of Manila and allow or solicit Chinese residents to smoke
opium on board.
The order appealed from is revoked and the cause ordered remanded to the
court of origin for further proceedings in accordance with law, without
special findings as to costs. So ordered.
Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner,
vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND,
UNITED STATES ARMY, respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas
against the Commanding General Philippine-Ryukyus Command, United
States Army, who is alleged to have petitioner under custody and to have
appointed a General Court-Martial to try petitioner in connection with an
offense over which the said court has no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United States
Army in the Philippines, who has been charged with disposing in the Port of
Manila Area of things belonging to the United States Army, in violation of
the 94th Article of War of the United States. He has been arrested for that
reason and a General Court-Martial appointed by respondent tried and
found him guilty and sentenced him to 15 years imprisonment. This
sentence, however, is not yet final for it is still subject to review.
It may be stated as a rule that the Philippines, being a sovereign nation, has
jurisdiction over all offenses committed within its territory, but it may, by
treaty or by agreement, consent that the United States or any other foreign
nation, shall exercise jurisdiction over certain offenses committed within
certain portions of said territory. On March 11, 1947, the Republic of the
Philippines and the Government of the United States of America, entered
into an agreement concerning military bases, and Article XIII thereof is as
follows:
JURISDICTION
1. The Philippines consents that the United States shall have the
right to exercise jurisdiction over the following offenses:
(a) Any offense committed by any person within any base
except where the offender and offended parties are both
Philippine citizens (not members of the armed forces of
the United States on active duty) or the offense is against
the security of the Philippines;
(b) Any offense committed outside the bases by any
member of the armed forces of the United States in which
the offended party is also a member of the armed forces of
the United States; and
(c) Any offense committed outside the bases by any
member of the armed forces of the United States against
the security of the United States.
2. The Philippines shall have the right to exercise jurisdiction over
all other offenses committed outside the bases by any member of
the armed forces of the United States.
3. Whenever for special reasons the United States may desire not
to exercise the jurisdiction reserved to it in paragraphs 1 and 6 of
this Article, the officer holding the offender in custody shall so
notify the fiscal (prosecuting attorney) of the city or province in
which the offense has been committed within ten days after his
arrest, and in such case the Philippines shall exercise jurisdiction.
4. Whenever for special reasons the Philippines may desire not to
exercise the jurisdiction reserved to it in paragraph 2 of this
Article, the fiscal (prosecuting attorney) of the city or province
where the offense has been committed shall so notify the officer
holding the offender in custody within ten days after his arrest, and
in such a case the United States shall be free to exercise
jurisdiction. If any offense falling under paragraph 2 of this article
is committed by any member of the armed forces of the United
States.
(a) While engaged in the actual performance of a specific
military duty, or
(b) during a period of national emergency declared by
either Government and the fiscal (prosecuting attorney) so
finds from the evidence, he shall immediately notify the
officer holding the offender in custody that the United
States is free to exercise jurisdiction. In the event the
fiscal (prosecuting attorney) finds that the offense was not
committed in the actual performance of a specific military
duty, the offender's commanding officer shall have the
right to appeal from such finding to the Secretary of
Justice within ten days from the receipt of the decision of
the fiscal and the decision of the Secretary of Justice shall
be final.
5. In all cases over which the Philippines exercises jurisdiction the
custody of the accused, pending trial and final judgment, shall be
entrusted without delay to the commanding officer of the nearest
base, who shall acknowledge in writing that such accused has been
delivered to him for custody pending trial in a competent court of
the Philippines and that he will be held ready to appear and will be
produced before said court when required by it. The commanding
officer shall be furnished by the fiscal (prosecuting attorney) with a
copy of the information against the accused upon the filing of the
original in the competent court.
6. Notwithstanding the foregoing provisions, it is naturally agreed
that in time of war the United States shall have the right to exercise
exclusive jurisdiction over any offenses which may be committed
by members of the armed forces of the United States in the
Philippines.
7. The United States agrees that it will not grant asylum in any of
the bases to any person fleeing from the lawful jurisdiction of the
Philippines. Should such person be found in any base, he will be
surrendered on demand to the competent authorities of the
Philippines.
8. In every case in which jurisdiction over an offense is exercised
by the United States, the offended party may institute a separate
civil action against the offender in the proper court of the
Philippines to enforce the civil liability which under the laws of the
Philippines may arise from the offense.
Under paragraph 1 (a), the General Court-Martial would have jurisdiction
over the criminal case against petitioner if the offense had been committed
within a base. Under paragraph 1 (b), if the offense had been committed
outside a base, still the General Court-Martial would have jurisdiction if the
offense had been committed by a "member of the armed forces of the
United States" there being no question that the offended party in this case is
the United States. It is not necessary therefore, to consider whether the
offense is against "the security of the United States" under paragraph 1 (c),
or whether petitioner committed it in "the actual performance of a specific
military duty" or in time of a declared "national emergency" under
paragraph 4, or whether we are still in a state of war under paragraph 6, for
in all these instances the military jurisdiction depends also upon whether the
offender is a member of the armed forces of the United States. We shall
then determine in this case (1) whether the offense has been committed
within or without a base, and, in the second instance, (2) whether the
offender is or is not a member of the armed forces of the United States.
As to the first question, Article XXVI of the Agreement provides that
"bases are those area named in Annex A and Annex B and such additional
areas as may be acquired for military purposes pursuant to the terms of this
Agreement." Among the areas specified in Annexes A and B, there is none
that has reference to the Port Area of Manila where the offense has
allegedly been committed. On the contrary, it appears in Annex A that
"army communications system" is included, but with "the deletion of all
stations in the Port of Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article is
as follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right
to occupy temporary quarters and installations now existing
outside the bases mentioned in Annex A and Annex B, for such
reasonable time, not exceeding two years, as may be necessary to
develop adequate facilities within the bases for the United States
armed forces. If circumstances require an extension of time, such a
period will be fixed by mutual agreement of the two Governments;
but such extension shall not apply to the existing temporary
quarters and installations within the limits of the City of Manila
and shall in no case exceed a period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the
Port of Manila reservation with boundaries as of 1941 will be
available for use to the United States armed forces until such time
as other arrangements can be made for the supply of the bases by
mutual agreement of the two Governments.
3. The terms of this agreement pertaining to bases shall be
applicable to temporary quarters and installations referred to in
paragraph 1 of this article while they are so occupied by the armed
forces of the United States; provided, that offenses committed
within the temporary quarters and installations located within the
present limits of the City of Manila shall not be considered as
offenses within the bases but shall be governed by the provisions
of Article XIII, paragraphs 2 and 4, except that the election not to
exercise the jurisdiction reserved to the Philippines shall be made
by the Secretary of Justice. It is agreed that the United States shall
have full use and full control of all these quarters and installations
while they are occupied by the armed forces of the United States,
including the exercise of such measures as may be necessary to
police said quarters for the security of the personnel and property
therein.
The subject matter of this article, as indicated by its heading, is "Temporary
Installations." Paragraph 1 refers to temporary quarters and installations
existing outside the bases specified in Annex A and Annex B, which may be
retained by the United States armed forces for such reasonable time as may
be necessary not exceeding two years in duration, extendible fro not more
than three years, the extension not being applicable to existing temporary
quarters and installations within the limits of the City of Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation, which
will be available for use to the United States armed forces, also as a
temporary quarters and installations, its temporariness not being for a
definite period of time, but "until such time as other arrangements can be
made for supply of the bases by mutual agreement of the two
Governments." There is in paragraph 2 absolutely nothing that may be
construed as placing the Port of Manila Reservation in the category of a
permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within the
temporary quarters and installations located within the present limits of the
City of Manila shall not be considered as offenses within the bases but shall
be governed by the provisions of Article XIII, paragraphs 2 and 4."
Therefore, the offense at bar cannot be considered as committed within, but
without, a base, since it has been committed in the Port of Manila Area,
which is not one of the bases mentioned in Annexes A and B to the
Agreement, and is merely temporary quarters located within the present
limits of the City of Manila.
The next inquiry is whether or not the offender may be considered as a
member of the armed forces of the United States under Article XIII,
paragraph 1 (b). As above stated, petitioner is a Filipino citizen and a
civilian employee of the United States Army in the Philippines. Under the
terms of the Agreement, a civilian employee cannot be considered as a
member of the armed forces of the United States. Articles XI, XVI and
XVIII of the Agreement make mention of civilian employees separately
from members of the armed forces of the United States, which is a
conclusive indication that under said Agreement armed forces do not
include civilian employees.
Respondent invokes Articles II of the Articles of War of the United States,
which enumerates, among the persons subject to military law, persons
accompanying or serving with the armies of the United States. But this case
should be decided not under the Articles of War, but under the terms of the
Base Agreement between the United States and the Philippines. And not
because a person is subject to military law under the Articles of War does
he become, for that reason alone, a member of the armed forces under the
Base Agreement. And even under the Articles of War, the mere fact that a
civilian employee is in the service of the United States Army does not make
him a member of the armed forces of the United States. Otherwise, it would
have been necessary for said Article to enumerate civilian employees
separately from members of the armed forces of the United States.
Respondent maintains that petitioner has no cause of action because the
Secretary of Justice had not notified the officer holding the petitioner in
custody whether or not the Philippines desired to retain jurisdiction under
Article XXI, paragraph 3, of the Military Base Agreement. It is sufficient to
state in this connection that in cases like the present where the offender is a
civilian employee and not a member of the Unites States armed forces, no
waiver can be made either by the prosecuting attorney of by the Secretary of
Justice, under paragraphs 2 and 4 of Article XIII in connection with
paragraph 3 of Article XXI, of the Agreement.
We are, therefore, of the opinion and so hold, that the General Court-Martial
appointed by respondent has no jurisdiction to try petitioner for the offense
allegedly committed by him and, consequently, the judgment rendered by
said court sentencing the petitioner to 15 years' imprisonment is null and
void for lack of jurisdiction.
It is ordered that petitioner be released immediately by respondent without
prejudice to any criminal action which may be instituted in the proper court
of the Philippines.
Let a copy of this decision be sent immediately to the Honorable, Secretary
of Justice.
Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason,
JJ, concur.
Separate Opinions
PERFECTO, J., concurring:
One of the attributes of national sovereignty is the power to try and punish
offenses, criminal and otherwise. The exercise of that power is, by virtue of
express provision of our Constitution, vested in the Supreme Court and in
inferior courts established by law. (Sec. 1, Art. VIII) The fundamental law
refers to inferior courts created by an enactment of a national legislature,
Assembly or Congress, not to foreign courts martial, created by foreign
countries.
All this is in accordance with elemental principles of political law.
If petitioner is liable for a criminal offense, according to our laws, the
jurisdiction to try him belongs to a justice of the peace or municipal court or
to a court of first instance.
The jurisdiction can be transferred to other courts by virtue of a law that
may be enacted to said effect. The law, to be effective, must not violate the
constitutional Bill of Rights, among them the guarantee of fair trial in favor
of an accused, the equal protection of the law, the due process of law, the
guarantees against illegal detentions and searches, and others.
Petitioner is a Filipino citizen and a civilian employee of the U. S. Army,
rendering services in the Philippines. He attacks the power of the
Commanding General, Philippine Ryukus Command, U.S. Army, to have
him under military custody and tried by a general court-martial of said
army. Respondent invokes, in opposing the petition, the provisions of the
agreement on military Bases entered into by the Republic of the Philippines
and the government of the United States of America on March 14, 1947.
The agreement appears to be a concession to two weaknesses: the American
distrust in Philippine tribunals and Filipino yielding to much distrust; on
one hand, undisguised prejudice, — national, racial, or otherwise, — on the
other, meek submission to the natural consequences of an unreasonable
prejudice; on one side, the haughtiness of a powerful nation, proud in the
consciousness of its power, on the other, the moral surrender of a new
nation, not yet so sure in the exercise to their fullness of sovereign
prerogatives. Extra-territoriality is wrong per se.
It is, therefore, assailable on two opposing fronts. On constitutional ground,
it is hardly defensible.
The Bill of Rights has been embodied in the Constitution for the protection
of all human beings within the territorial jurisdiction of the Philippines. All
persons covered by the waivers made in the agreement, whether Americans
or Filipinos, whether citizens or aliens, are denied the constitutional
guarantee of the equal protection of the law. Their fundamental rights are
safeguarded by the Constitution, and the agreement places them outside the
Constitution.
Our conclusion is, therefore, that the agreement in question, so far as it
stipulates waiver of the jurisdiction of our courts of justice on the class of
persons mentioned therein, is null and void, being in open conflict with
clear provisions of our fundamental law.
Upon this ground, petitioner is entitled to be released by respondent and by
the court martial which tried him.
Even in the erroneous hypothesis that the waiver clauses of the agreement
are valid, we concur in the reasoning of the Chief Justice in support of the
position that petitioner is not comprehended in said waiver clauses. With
more reason, respondent has no power nor jurisdiction to hold petitioner in
confinement, nor to have him tried by a U.S. army court-martial.
Notice must be served to the whole world that, in rendering the decision in
this case, the Supreme Court, in the fullness of judicial maturity, acted not
as a mere agency of national sovereignty, but in the consciousness that the
administration of justice, more than national, is a human function,
untethered by the narrow provincialism of the points of view of a country,
but founded on the universal and permanent interests of mankind, as
expressed in principles with equal value regardless of the hemisphere of the
latitude where a person may be placed.
There is a suggestion that, because it has not found articulate expression in
this case, it should be ignored, when it is boiling in many minds, and it is
that respondent, shielded by his military power and the overwhelming
national power of his country, may ignore our decision, and we will be
powerless to enforce it. The fact that respondent appeared before us,
through counsel, without any reservation, answers the suggestion, and gives
full justice to the sense of moral values of the respondent.
Besides, in the present state of international affairs, when America is
engaged in the noble task of making a reality the ideal of one world, it can
not compromise its moral leadership by any showing of reckless disregard
to the decision of a court of justice. The cry that there must be one world or
none can receive but one satisfactory answer; the reality of world justice.
Only in justice hinges the salvation of humanity. Only justice can give real
peace and provide the basis for contentment and happiness.
We concur in the decision, ordering the immediate release of the petitioner.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-30026 January 30, 1971
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO
AGAPITO, EPIFANIO PADUA and PATERNO
PALMARES, petitioners,
vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.
Jose W. Diokno for petitioners.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor
General Antonio A. Torres and Solicitor Eduardo C. Abaya for respondent.
FERNANDO, J.:
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in
number, for their release from imprisonment. Meted out life terms for the
complex crime of rebellion with murder and other crimes, they would
invoke the People v. Hernandez1 doctrine, negating the existence of such an
offense, a ruling that unfortunately for them was not handed down until
after their convictions had become final. Nor is this the first instance, a
proceeding of this character was instituted, as in Pomeroy v. Director of
Prisons,2 likewise a petition for habeas corpus, a similar question was
presented. The answer given was in the negative. Petitioners plead for a new
look on the matter. They would premise their stand on the denial of equal
protection if their plea would not be granted. Moreover they did invoke the
codal provision that judicial decisions shall form part of the legal system of
the Philippines,3 necessarily resulting in the conclusion that the Hernandez
decision once promulgated calls for a retroactive effect under the explicit
mandate of the Revised Penal Code as to penal laws having such character
even if at the time of their application a final sentence has been rendered
"and the convict is serving the same."4 These arguments carry considerable
persuasion. Accordingly we find for petitioners, without going so far as to
overrule Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5,
1953 to suffer reclusion perpetua for the complex crime of rebellion with
multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio
Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to
the complex crime of rebellion with multiple murder and other offenses, and
were similarly made to suffer the same penalty in decisions rendered, as to
the first two, on March 8, 1954 and, as to the third, on December 15, 1955.
The last petitioner, Blas Bagolbagol, stood trial also for the complex crime
of rebellion with multiple murder and other offenses and on January 12,
1954 penalized with reclusion perpetua. Each of the petitioners has been
since then imprisoned by virtue of the above convictions. Each of them has
served more than 13 years.5
Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that
the information against the accused in that case for rebellion complexed
with murder, arson and robbery was not warranted under Article 134 of the
Revised Penal Code, there being no such complex offense.7 In the recently-
decided case of People vs. Lava,8 we expressly reaffirmed the ruling in the
Hernandez case rejecting the plea of the Solicitor General for the
abandonment of such doctrine. It is the contention of each of the petitioners
that he has served, in the light of the above, more than the maximum
penalty that could have been imposed upon him. He is thus entitled to
freedom, his continued detention being illegal.9
The fear that the Pomeroy ruling stands as an obstacle to their release on a
habeas corpus proceeding prompted petitioners, as had been mentioned, to
ask that it be appraised anew and, if necessary, discarded. We can resolve
the present petition without doing so. The plea there made was
unconvincing, there being a failure to invoke the contentions now pressed
vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of
a denial of a constitutional right that would suffice to raise a serious
jurisdictional question and the retroactive effect to be given a judicial
decision favorable to one already sentenced to a final judgment under Art.
22 of the Revised Penal Code. To repeat, these two grounds carry weight.
We have to grant this petition.
1. The fundamental issue, to repeat, is the availability of the writ of habeas
corpus under the circumstances disclosed. Its latitudinarian scope to assure
that illegality of restraint and detention be avoided is one of the truisms of
the law. It is not known as the writ of liberty for nothing. The writ imposes
on judges the grave responsibility of ascertaining whether there is any legal
justification for a deprivation of physical freedom. Unless there be such a
showing, the confinement must thereby cease. If there be a valid sentence it
cannot, even for a moment, be extended beyond the period provided for by
law. Any deviation from the legal norms call for the termination of the
imprisonment.
Rightly then could Chafee refer to the writ as "the most important human
rights provision" in the fundamental law. 10Nor is such praise unique.
Cooley spoke of it as "one of the principal safeguards to personal
liberty." 11 For Willoughby, it is "the greatest of the safeguards erected by
the civil law against arbitrary and illegal imprisonment by whomsoever
detention may be exercised or ordered." 12 Burdick echoed a similar
sentiment, referring to it as "one of the most important bulwarks of
liberty." 13 Fraenkel made it unanimous, for to him, "without it much else
would be of no avail." 14 Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of habeas corpus in the
defense of liberty coupled with its limitations may be detected in the
opinions of former Chief Justices Arellano, 15 Avanceña, 16 Abad
Santos, 17 Paras, 18Bengzon, 19 and the present Chief Justice. 20 It fell to
Justice Malcolm's lot, however to emphasize quite a few times the breadth
of its amplitude and of its reach. In Villavicencio v. Lukban, 21 the remedy
came in handy to challenge the validity of the order of the then respondent
Mayor of Manila who, for the best of reasons but without legal justification,
ordered the transportation of more than 150 inmates of houses of ill-repute
to Davao. After referring to the writ of habeas corpus as having been
devised and existing "as a speedy and effectual remedy to relieve persons
from unlawful restraint" the opinion of Justice Malcolm continued: "The
essential object and purpose of the writ of habeas corpus is to inquire into
all manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal. Any restraint which
will preclude freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions
even if presented in pleadings on their face devoid of merit was
demonstrated in Ganaway v. Quilen, 23 where this Court, again through
Justice Malcolm, stated: "As standing alone the petition for habeas corpus
was fatally defective in its allegations, this court, on its motion, ordered
before it the record of the lower court in the case entitled Thomas Casey, et
al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v.
Rivera, 25 to whom is traceable the doctrine, one that broadens the field of
the operation of the writ, that a disregard of the constitutional right to
speedy trial ousts the court of jurisdiction and entitles the accused if
"restrained of his liberty, by habeas corpus to obtain his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice Marshall
put the matter thus: "The writ of habeas corpus is a high prerogative writ,
known to the common law, the great object of which is the liberation of
those who may be imprisoned without sufficient cause." Then there is this
affirmation from an 1869 decision 28 of the then Chief Justice Chase: "The
great writ of habeas corpus has been for centuries esteemed the best and
only sufficient defense of personal freedom." The passing of the years has
only served to confirm its primacy as a weapon on in the cause of liberty.
Only the other year, Justice Fortas spoke for the United States Supreme
Court thus: "The writ of habeas corpus is the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action.
... The scope and flexibility of the writ — its capacity to reach all manner of
illegal detention — its ability to cut through barriers of form and procedural
mazes — have always been emphasized and jealously guarded by courts
and lawmakers. The very nature of the writ demands that it be administered
with the initiative and flexibility essential to insure that miscarriages of
justice within its reach are surfaced and corrected." 29 Justice Fortas
explicitly made reference to Blackstone, who spoke of it as "the great and
efficacious writ, in all manner of illegal confinement." Implicit in his just
estimate of its pre-eminent role is his adoption of Holmes' famous dissent in
Frank v. Mangum: 30 "But habeas corpus cuts through all forms and goes to
the very tissue of the structure."
2. Where, however, the detention complained of finds its origin in what has
been judicially ordained, the range of inquiry in a habeas corpus proceeding
is considerably narrowed. For if "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 judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the judgment, or
make the order," the writ does not lie. 31 That principle dates back to
1902, 32 when this Court announced that habeas corpus was unavailing
where the person detained was in the custody of an officer under process
issued by a court or magistrate. This is understandable, as during the time
the Philippines was under American rule, there was necessarily an
adherence to authoritative doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of
jurisdictional defect. As summarized by Justice Bradley in Ex parte Siebold,
an 1880 decision: "The only ground on which this court, or any court,
without some special statute authorizing it, will give relief on habeas corpus
to a prisoner under conviction and sentence of another court is the want of
jurisdiction in such court over the person or the cause, or some other matter
rendering its proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind.
Once a deprivation of a constitutional right is shown to exist, the court that
rendered the judgment is deemed ousted of jurisdiction and habeas corpus is
the appropriate remedy to assail the legality of the detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right, namely,
the denial of equal protection. According to their petition: "In the case at
bar, the petitioners were convicted by Courts of First Instance for the very
same rebellion for which Hernandez, Geronimo, and others were convicted.
The law under which they were convicted is the very same law under which
the latter were convicted. It had not and has not been changed. For the same
crime, committed under the same law, how can we, in conscience, allow
petitioners to suffer life imprisonment, while others can suffer only prision
mayor?" 35
They would thus stress that, contrary to the mandate of equal protection,
people similarly situated were not similarly dealt with. What is required
under this required constitutional guarantee is the uniform operation of legal
norms so that all persons under similar circumstances would be accorded
the same treatment both in the privileges conferred and the liabilities
imposed. As was noted in a recent decision: "Favoritism and undue
preference cannot be allowed. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not
identical are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion,
whatever restrictions cast on some in the group equally binding on the
rest." 36
The argument of petitioners thus possesses a persuasive ring. The continued
incarceration after the twelve-year period when such is the maximum length
of imprisonment in accordance with our controlling doctrine, when others
similarly convicted have been freed, is fraught with implications at war with
equal protection. That is not to give it life. On the contrary, it would render
it nugatory. Otherwise, what would happen is that for an identical offense,
the only distinction lying in the finality of the conviction of one being
before the Hernandez ruling and the other after, a person duly sentenced for
the same crime would be made to suffer different penalties. Moreover, as
noted in the petition before us, after our ruling in People v. Lava, petitioners
who were mere followers would be made to languish in jail for perhaps the
rest of their natural lives when the leaders had been duly considered as
having paid their penalty to society, and freed. Such a deplorable result is to
be avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on
Article 22 of the Revised Penal Code which requires that penal judgment be
given a retroactive effect. In support of their contention, petitioners cite U.S.
v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v.
Moran, 40 and People v. Parel. 41 While reference in the above provision is
made not to judicial decisions but to legislative acts, petitioners entertain the
view that it would be merely an exaltation of the literal to deny its
application to a case like the present. Such a belief has a firmer foundation.
As was previously noted, the Civil Code provides that judicial decisions
applying or interpreting the Constitution, as well as legislation, form part of
our legal system. Petitioners would even find support in the well-known
dictum of Bishop Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken laws,
it is he who is truly the law-giver to all intents and purposes, and not the
person who first thought or spoke them." It is to be admitted that
constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well
as the jurist John Chipman Gray, were much impressed with the truth and
the soundness of the above observations. We do not have to go that far
though. Enough for present purposes that both the Civil Code and the
Revised Penal Code allow, if they do not call for, a retroactive application.
It being undeniable that if the Hernandez ruling were to be given a
retroactive effect petitioners had served the full term for which they could
have been legally committed, is habeas corpus the appropriate remedy? The
answer cannot be in doubt. As far back as 1910 the prevailing doctrine was
announced in Cruz v. Director of Prisons. 45Thus: "The courts uniformly
hold that where a sentence imposes punishment in excess of the power of
the court to impose, such sentence is void as to the excess, and some of the
courts hold that the sentence is void in toto; but the weight of authority
sustains the proposition that such a sentence is void only as to the excess
imposed in case the parts are separable, the rule being that the petitioner is
not entitled to his discharge on a writ of habeas corpus unless he has served
out so much of the sentence as was valid." 46 There is a reiteration of such a
principle in Director v. Director of Prisons 47 where it was explicitly
announced by this Court "that the only means of giving retroactive effect to
a penal provision favorable to the accused ... is the writ of habeas
corpus." 48 While the above decision speaks of a trial judge losing
jurisdiction over the case, insofar as the remedy of habeas corpus is
concerned, the emphatic affirmation that it is the only means of benefiting
the accused by the retroactive character of a favorable decision holds true.
Petitioners clearly have thus successfully sustained the burden of justifying
their release.
WHEREFORE, the petition for habeas corpus is granted, and it is ordered
that petitioners be forthwith set at liberty.
Dizon and Zaldivar, JJ., concur.
Concepcion, C.J., concurs in the result.
Castro and Makasiar, JJ., took no part.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom
stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called
complex crime of rebellion with multiple murder and other crimes, and have
served or are now entering into their 17th year of imprisonment, save for
petitioner Epifanio Padua who was sentenced on December 15, 1955 and is
completing his 15th year of imprisonment, (excluding the periods they were
under pre-conviction detention). The leaders of the rebellion who were
meted out death and life sentences for the same charge by the Court of First
Instance of Manila had their sentences reduced last near to ten years
of prision mayor by the Court in People v. Lava,3 wherein the Court
expressly re-affirmed the doctrine first laid down in 1956 in People vs.
Hernandez,4 that the crime of rebellion cannot be complexed with other
common crimes since such common crimes "assume the political
complexion of the main crime of which they are mere ingredients and
consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The
Court rejected therein the State's plea for the reexamination and setting
aside of such doctrine, declaring that "(T)his Court has given this plea of the
Solicitor General a very serious consideration, but after a mature
deliberation the members of this Court have decided to maintain that ruling
in the Hernandez case and to adhere to what this Court said in that case."
The said leaders have since been duly freed as having served out their
penalty, but their followers, herein petitioners, are still serving their life
sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that
"(W)ith reference to persons in custody pursuant to a final judgment, the
rule is that the writ of habeas corpus can issue only for want of jurisdiction
of the sentencing court, and cannot function as a writ of error." "I grant, too,
that at the time of the Pomeroy decision in 1960, as noted therein, "the
existence of the 'complexed' rebellion (was) still upheld by a sizable number
of lawyers, prosecutors, judges and even justices of this Court." But with
the doctrine first enunciated in 1956 in Hernandez by a bare six-to-four
majority vote having withstood the test of time6 and having been just last
year unreservedly reaffirmed without a single dissent in Lava, it cannot now
be gainsaid that it is now part of our legal system that the crime of
"complexed" rebellion does not exist in our Revised Penal Code. No
prosecutor would now file an information for "complexed" rebellion but
simply for the offense of simple rebellion as defined in Article 134 of the
Revised Penal Code, and even if such an information for "complexed"
rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength
of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of
Article 22 of the Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws
shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal,
as this term is defined in rule 5 of article 62 of this Code,
although at the time of the publication of such laws a final
 sentence has been pronounced and the convict is serving
the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial
decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines."
The situation of petitioners is no different than it would be if, say, the
penalty of reclusion perpetua were imposed by statute for the crime of
simple rebellion at the time of their conviction and they were accordingly
sentenced, and the statutory penalty were now reduced to prision mayor or
12 years imprisonment; having served out the maximum penalty of 12 years
now imposed by the amended statute, they would be entitled to invoke the
retroactive effect of the statute favoring them.lâwphî1.ñèt The only
difference between the situation given and the present case is that here it is
this Supreme Court, interpreting the laws in discharge of its constitutional
prerogative, that has laid down the doctrine since Hernandez in 1956 that no
offense of "complexed" rebellion exists and petitioners should therefore be
now equally entitled to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was
punishable by life imprisonment, but the Court has subsequently judicially
determined it not be so and that the maximum imposable penalty is prision
mayor or 12 years. Petitioners-convicts are entitled to the benefit of this
later judicial declaration, just as if a statutory amendment had been
enacted—not because the sentencing court had no jurisdiction or is now
ousted of jurisdiction. The writ prayed for should issue, since as held
in Directo vs. Director of Prisons,7 "the only means of giving retroactive
effect to a penal provision favorable to the accused where the trial judge has
lost jurisdiction over the case, is the writ of habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it
is universally recognized that relief by habeas corpus may be properly
sought in cases of imposition of excessive penalty, such that the part of the
sentence beyond or in excess of the power of the court to impose is held
void, the applicant having already served out the entire part of the sentence
within the court's power. 8 As pointed out by the Court in Rodriguez vs.
Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ...
extends its benefits even to convicts serving sentence, and the only legal
remedy open to them to make use of such benefits is the writ of habeas
corpus inasmuch as, if the penalty imposed upon them under the former
penal law was decreased by the revised code, the excess has become
illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners
to life sentences had jurisdiction or not to impose such penalty, or were
right or wrong in imposing such penalty, the only relevant question now is
whether petitioners have served the maximum — and lesser — sentence
of prision mayor that this Court has by firm judicial doctrine since 1956
determined to be the penalty that the Revised Penal Code fixes for the crime
of rebellion. Since they have actually served much more than the maximum
imposable penalty, the excess of the sentence imposed upon them over the
imposable maximum of twelve years of prision mayor cannot but be
declared illegal and they should now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act
3030) for the prescription of certain election offenses (fixing the same at
one year after commission) were more favorable to the accused than those
of the pre-existing law and were therefore retroactive as to the same
offenses committed before the enactment of the new law. In meeting the
objection that the reduced prescription period was by its terms applicable
only to offenses resulting from the new law (which amended the pre-
existing Election Law) and could not be given retroactive effect, the Court
found "that practically all of the offenses defined in the former law are also
defined in the same language in Act 3030 (the new law), the only difference
being that the penalties have been increased." Holding that the retroactivity
clause of Article 22 of the Penal Code must apply in all in which the new
law is more favorable to the accused, in the absence of any express statutory
exception, the Court drew this analogy: "Let us suppose that a statute is
enacted defining the crime of murder in the same language in which it is
defined in the Penal Code, but providing that the maximum penalty for the
crime defined in the new statute shall be life imprisonment, the statute
containing no provision that it shall not be retroactive in its effect. Would
anyone then maintain that the death penalty might still be imposed for
murder committed before the new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no question
even as to the enactment of a law statute describing the crime in the same
language and imposing a lesser penalty, but the settled doctrine of this
Court that there does not exist in our legal system the complex crime of
rebellion of which the petitioners stand convicted, "since rebellion cannot
form a complex with common crimes, because the latter are either absorbed
by the rebellion itself or are punishable as independent
offenses." 11 Petitioners here have been convicted for the very same
rebellion and under the very same law for which their leaders, Jose Lava et
al., have been convicted. Yet, while their leaders have since been freed after
serving their sentences of ten years of prision mayor, petitioners as mere
followers are serving out the life sentences imposed on them,
notwithstanding their already having served out much more than the
maximum penalty of twelve years of prision mayor imposable upon them.
The fact that the legal doubts about the non-existence of the crime of
"complexed" rebellion were cleared up only in 1956 after they had already
been convicted and were serving their sentences does not make the excess
in the penalty imposed upon them beyond the maximum of twelve years any
less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines,
and its corollary rule of the law of the case, have no application here. These
salutary rules decree that rights of parties having been decisively settled and
determined by final judgment of the court of competent jurisdiction with the
party adversely affected having had the opportunity to raise in the case all
relevant questions, the decision becomes the law of the case, and vested
rights would be impaired, judicial chaos and disorder ensue and litigation
would be never-ending and would become more intolerable than the wrongs
it is intended to redress, should an adjudicated case be reopened simply
because in another and subsequent case, this Court adopted a new or
different construction of the law under which a different result of the
adjudicated case might have been obtained. Here, the whole question
turns — simply — on the nature of the crime of rebellion as defined in
section 134 of the Revised Penal Code and the maximum penalty imposable
therefor under section 135 of the same Code. As this Court had ruled since
1956--which is now settled doctrine—that only the crime of simple
rebellion exists in our legal system for which the maximum penalty
of prision mayor may be imposed, the excess of the life sentences imposed
upon petitioners over the imposable maximum of prision mayor cannot
stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing courts,
the case at bar presents a clear case of an excess in penalty imposed beyond
twelve years of prision mayor which has become illegal by virtue of this
Court's settled doctrine that the crime of rebellion cannot be complexed
with other common crimes. On this ground, as well as on the further and
more fundamental ground that to hold them liable to continue serving life
sentences for a crime that the law—at the time of their conviction as well as
now—punishes only with prision mayor which they have more than fully
served, would be to deny them their constitutional rights of due process and
equal protection of the law.
Any further detention of petitioners, in my view as above discussed, is
illegal and unconstitutional and the petition for habeas corpus should be
granted and petitioners forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom
stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called
complex crime of rebellion with multiple murder and other crimes, and have
served or are now entering into their 17th year of imprisonment, save for
petitioner Epifanio Padua who was sentenced on December 15, 1955 and is
completing his 15th year of imprisonment, (excluding the periods they were
under pre-conviction detention). The leaders of the rebellion who were
meted out death and life sentences for the same charge by the Court of First
Instance of Manila had their sentences reduced last near to ten years
of prision mayor by the Court in People v. Lava,3 wherein the Court
expressly re-affirmed the doctrine first laid down in 1956 in People vs.
Hernandez,4 that the crime of rebellion cannot be complexed with other
common crimes since such common crimes "assume the political
complexion of the main crime of which they are mere ingredients and
consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The
Court rejected therein the State's plea for the reexamination and setting
aside of such doctrine, declaring that "(T)his Court has given this plea of the
Solicitor General a very serious consideration, but after a mature
deliberation the members of this Court have decided to maintain that ruling
in the Hernandez case and to adhere to what this Court said in that case."
The said leaders have since been duly freed as having served out their
penalty, but their followers, herein petitioners, are still serving their life
sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that
"(W)ith reference to persons in custody pursuant to a final judgment, the
rule is that the writ of habeas corpus can issue only for want of jurisdiction
of the sentencing court, and cannot function as a writ of error." "I grant, too,
that at the time of the Pomeroy decision in 1960, as noted therein, "the
existence of the 'complexed' rebellion (was) still upheld by a sizable number
of lawyers, prosecutors, judges and even justices of this Court." But with
the doctrine first enunciated in 1956 in Hernandez by a bare six-to-four
majority vote having withstood the test of time6 and having been just last
year unreservedly reaffirmed without a single dissent in Lava, it cannot now
be gainsaid that it is now part of our legal system that the crime of
"complexed" rebellion does not exist in our Revised Penal Code. No
prosecutor would now file an information for "complexed" rebellion but
simply for the offense of simple rebellion as defined in Article 134 of the
Revised Penal Code, and even if such an information for "complexed"
rebellion to be so filed, the trial courts would be bound to quash such
information as not charging an offense on the strength
of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of
Article 22 of the Revised Penal Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws
shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal,
as this term is defined in rule 5 of article 62 of this Code,
although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving
the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial
decisions applying or interpreting the laws or the Constitution shall form a
part of the legal system of the Philippines."
The situation of petitioners is no different than it would be if, say, the
penalty of reclusion perpetua were imposed by statute for the crime of
simple rebellion at the time of their conviction and they were accordingly
sentenced, and the statutory penalty were now reduced to prision mayor or
12 years imprisonment; having served out the maximum penalty of 12 years
now imposed by the amended statute, they would be entitled to invoke the
retroactive effect of the statute favoring them. The only difference between
the situation given and the present case is that here it is this Supreme Court,
interpreting the laws in discharge of its constitutional prerogative, that has
laid down the doctrine since Hernandez in 1956 that no offense of
"complexed" rebellion exists and petitioners should therefore be now
equally entitled to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was
punishable by life imprisonment, but the Court has subsequently judicially
determined it not be so and that the maximum imposable penalty is prision
mayor or 12 years. Petitioners-convicts are entitled to the benefit of this
later judicial declaration, just as if a statutory amendment had been
enacted—not because the sentencing court had no jurisdiction or is now
ousted of jurisdiction. The writ prayed for should issue, since as held
in Directo vs. Director of Prisons,7 "the only means of giving retroactive
effect to a penal provision favorable to the accused where the trial judge has
lost jurisdiction over the case, is the writ of habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it
is universally recognized that relief by habeas corpus may be properly
sought in cases of imposition of excessive penalty, such that the part of the
sentence beyond or in excess of the power of the court to impose is held
void, the applicant having already served out the entire part of the sentence
within the court's power. 8 As pointed out by the Court in Rodriguez vs.
Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ...
extends its benefits even to convicts serving sentence, and the only legal
remedy open to them to make use of such benefits is the writ of habeas
corpus inasmuch as, if the penalty imposed upon them under the former
penal law was decreased by the revised code, the excess has become
illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners
to life sentences had jurisdiction or not to impose such penalty, or were
right or wrong in imposing such penalty, the only relevant question now is
whether petitioners have served the maximum — and lesser — sentence
of prision mayor that this Court has by firm judicial doctrine since 1956
determined to be the penalty that the Revised Penal Code fixes for the crime
of rebellion. Since they have actually served much more than the maximum
imposable penalty, the excess of the sentence imposed upon them over the
imposable maximum of twelve years of prision mayor cannot but be
declared illegal and they should now be set free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act
3030) for the prescription of certain election offenses (fixing the same at
one year after commission) were more favorable to the accused than those
of the pre-existing law and were therefore retroactive as to the same
offenses committed before the enactment of the new law. In meeting the
objection that the reduced prescription period was by its terms applicable
only to offenses resulting from the new law (which amended the pre-
existing Election Law) and could not be given retroactive effect, the Court
found "that practically all of the offenses defined in the former law are also
defined in the same language in Act 3030 (the new law), the only difference
being that the penalties have been increased." Holding that the retroactivity
clause of Article 22 of the Penal Code must apply in all in which the new
law is more favorable to the accused, in the absence of any express statutory
exception, the Court drew this analogy: "Let us suppose that a statute is
enacted defining the crime of murder in the same language in which it is
defined in the Penal Code, but providing that the maximum penalty for the
crime defined in the new statute shall be life imprisonment, the statute
containing no provision that it shall not be retroactive in its effect. Would
anyone then maintain that the death penalty might still be imposed for
murder committed before the new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no question
even as to the enactment of a law statute describing the crime in the same
language and imposing a lesser penalty, but the settled doctrine of this
Court that there does not exist in our legal system the complex crime of
rebellion of which the petitioners stand convicted, "since rebellion cannot
form a complex with common crimes, because the latter are either absorbed
by the rebellion itself or are punishable as independent
offenses." 11 Petitioners here have been convicted for the very same
rebellion and under the very same law for which their leaders, Jose Lava et
al., have been convicted. Yet, while their leaders have since been freed after
serving their sentences of ten years of prision mayor, petitioners as mere
followers are serving out the life sentences imposed on them,
notwithstanding their already having served out much more than the
maximum penalty of twelve years of prision mayor imposable upon them.
The fact that the legal doubts about the non-existence of the crime of
"complexed" rebellion were cleared up only in 1956 after they had already
been convicted and were serving their sentences does not make the excess
in the penalty imposed upon them beyond the maximum of twelve years any
less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines,
and its corollary rule of the law of the case, have no application here. These
salutary rules decree that rights of parties having been decisively settled and
determined by final judgment of the court of competent jurisdiction with the
party adversely affected having had the opportunity to raise in the case all
relevant questions, the decision becomes the law of the case, and vested
rights would be impaired, judicial chaos and disorder ensue and litigation
would be never-ending and would become more intolerable than the wrongs
it is intended to redress, should an adjudicated case be reopened simply
because in another and subsequent case, this Court adopted a new or
different construction of the law under which a different result of the
adjudicated case might have been obtained. Here, the whole question
turns — simply — on the nature of the crime of rebellion as defined in
section 134 of the Revised Penal Code and the maximum penalty imposable
therefor under section 135 of the same Code. As this Court had ruled since
1956--which is now settled doctrine—that only the crime of simple
rebellion exists in our legal system for which the maximum penalty
of prision mayor may be imposed, the excess of the life sentences imposed
upon petitioners over the imposable maximum of prision mayor cannot
stand and must necessarily be declared void.
Prescinding then from the question of jurisdiction of the sentencing courts,
the case at bar presents a clear case of an excess in penalty imposed beyond
twelve years of prision mayor which has become illegal by virtue of this
Court's settled doctrine that the crime of rebellion cannot be complexed
with other common crimes. On this ground, as well as on the further and
more fundamental ground that to hold them liable to continue serving life
sentences for a crime that the law—at the time of their conviction as well as
now—punishes only with prision mayor which they have more than fully
served, would be to deny them their constitutional rights of due process and
equal protection of the law.
1 99 Phil. 515 (1956).
2 107 Phil. 50 (1960).
3 Art. 8 of the Civil Code provides: "Judicial decisions
applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines."
4 According to Art. 22 of the Revised Penal Code:
"Retroactive effect of penal laws.—Penal laws shall have
a retroactive effect insofar as they favor the person guilty
of a felony, who is not a habitual criminal, as this term is
defined in rule 5 of article 62 of this Code, although at the
time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same."
5 Petition, par. 1.1 dated January 11,
1969.lâwphî1.ñèt The above allegations are expressly
admitted in the answer for the respondent Director of
Prisons filed by the Solicitor General on April 10, 1969.
6 99 Phil. 515 (1956).
7 The petition likewise cited in addition to People v.
Hernandez, People v. Geronimo, 100 Phil. 90 (1956);
People v. Togonon, 101 Phil. 804 (1957); People v.
Romagoza, 103 Phil. 20 (1958) and People v. Santos, 104
Phil. 551 (1958). Petition, par. 1.2.
8 L-4974, May 16, 1969.
Any further detention of petitioners, in my view as above discussed, is
illegal and unconstitutional and the petition for habeas corpus should be
granted and petitioners forthwith set at liberty.
Reyes, J.B.L., Makalintal and Villamor, JJ., concur.
Footnotes
9 Petition, par. 1.3.
10 Chafee, The Most Important Human Right in the
Constitution, 32 Boston Univ. Law Rev. 143 (1947).
11 2 Cooley, Constitutional Limitations 709 (1927).
12 3 Willoughby on the Constitution 1612 (1929).
13 Burdick, the Law of the American Constitution 27
(1922).
14 Fraenkel, Our Civil Liberties 6 (1944).
15 Cf. In re Patterson, 1 Phil. 93 (1902).
16 Cf. Ortiz v. del Villar, 57 Phil. 19 (1932).
17 Cf. Slade Perkins v. Director of Prisons, 58 Phil. 271
(1933).
18 Cf. Pomeroy v. Director of Prisons, 107 Phil. 50, 59-
62, diss. (1960).
19 Cf. Avelino v. Vera, 77 Phil. 192 (1946).
20 Cf. Saulo v. Cruz, 105 Phil. 315 (1959).
21 39 Phil. 778 (1919).
22 Ibid., p. 790.
23 42 Phil. 805 (1922).
24 Ibid., p. 805.
25 45 Phil. 650 (1924).
26 Ibid., p. 652.
27 Ex parte Watkins, 3 Pet. 193, 202.
28 Ex parte Yerger, 8 Wall. 85, 95.
29 Harris v. Nelson, 22 L Ed 2d 281, 286 (1969).
30 237 US 309, 346 (1915).
31 Section 4, Rule 102 provides: "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 judgment or order of a court of
record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the
writ shall not be allowed; or if the jurisdiction appears
after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a person charged
with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment." 3
Moran, Comments on the Rules of Court, p. 604, 1970 ed.
32 In re Prautch, 1 Phil. 132.
33 100 US 371, 375. According to Ex parte Lange: "On
consideration of the petition, the court was of opinion that
the facts therein recited very fairly raised the question
whether the circuit court, in the sentence which it had
pronounced, and under which the prisoner was held, had
not exceed its powers. It therefore directed the writ to
issue, accompanied also by a writ of certiorari, to bring
before this court the proceedings in the circuit court under
which the petitioner was restrained of his liberty. The
authority of this court in such case, under the Constitution
of the United States, and the 14th section of the judiciary
act of 1789 (1 Stat. at L. 73), to issue this writ, and to
examine the proceedings in the inferior court, so far as
may be necessary to ascertain whether that court has
exceeded its authority, is no longer open to question." (85
US 163, 165-166 [1874]). Justice Miller, who penned the
opinion, cited the following cases: U. S. v. Hamilton, 3
Dall. 17 (1795); Ex parte Burford, 3 Cranch 448
(1806); Ex parte Bollman, 4 Cranch 75 (1807); Ex
parte Watkins, 3 Pet. 193, 7 Pet. 508 (1830); Ex
Parte Metzger, 5 How. 176 (1847); Ex parte Kaine, 14
How. 103 (1852); Ex parte Wells, 18 How. 307
(1856); Ex Parte Milligan, 4 Wall. 2 (1866); Ex
parte Mccardle, 6 Wall. 318 (1868); Ex parte Yerger, 8
Wall. 85 (1869).
34 Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v.
Director of Prisons, 81 Phil. 741 (1948); Abriol v.
Homeres, 84 Phil. 525 (1949); Chavez v. Court of
Appeals,
L-29169, Aug. 1968, 24 SCRA 663; Celeste v. People, L-
21435, Jan. 30, 1970, 31 SCRA 391.
35 Petition, par. 5.1, p. 11.
36 J. M. Tuason & Co., Inc. v. Land Tenure
Administration, L-21064, Feb. 18, 1970, 31 SCRA 413.
37 11 Phil. 447 (1908).
38 24 Phil. 29 (1913).
 39 25 Phil. 648 (1913). 2 Petitioners Bagolbagol and Padua.

40 44 Phil. 387 (1923). 3 28 SCRA 72, 100 (May 16, 1969).

41 44 Phil. 437 (1923). 4 99 Phil. 515 (1956).

42 Frankfurter, The Reading of Statutes, reproduced in Of 5 107 Phil., 50 (1960).

Law and Men, 47, at p. 53 (1956).

43 Powell, The Logic and Rhetoric of Constitutional Law,

1 Selected Essays on Constitutional Law 474, at p. 481 6 Reiterated in People vs. — Geronimo, 100 Phil., 90
(1938). (1956); — Togonon, 101 Phil., 804 (1957); — Romagoza,
103 Phil., 20 (1958); and Aquino, 108 Phil., 814 (1960).
44 Thayer, The Origin and Scope of the American
Doctrine of Constitutional Law, Ibid., 503, at p. 524 7 56 Phil. 692 (1932).
(1938).
8 Cruz vs. Director of Prisons, 17 Phil. 269
45 17 Phil. 269. (1910); See also Caluag vs. Pecson, 82 Phil. 8 (1948).

46 Ibid., pp. 272-273. 9 57 Phil. 133 (1932).

47 56 Phil. 692 (1932). 10 44 Phil. 437 (1932), emphasis copied; see also People
vs. Moran, 44 Phil. 387 (1923).
48 Ibid. p. 695.
11 Pomeroy vs. Director of Prisons, supra fn. 5, see pp.
TEEHANKEE, J.: 54, 61.

1 Petitioners Gumabon, Agapito and Palmares.

IN THE MATTER OF THE PETITION FOR THE DECLARATION OF

THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8 OF R.A.
No. 6132.

KAY VILLEGAS KAMI, INC., petitioner.

EN BANC
MAKASIAR, J.:
G.R. No. L-32485 October 22, 1970
This petition for declaratory relief was filed by Kay Villegas Kami, Inc.,
claiming to be a duly recognized and existing non-stock and non-profit
corporation created under the laws of the land, and praying for a determination
of the validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's rights
and duties thereunder. In paragraph 7 of its petition, petitioner avers that it has
printed materials designed to propagate its ideology and program of government,
which materials include Annex B; and that in paragraph 11 of said petition,
petitioner intends to pursue its purposes by supporting delegates to the
Constitutional Convention who will propagate its
ideology.chanroblesvirtualawlibrarychanrobles virtual law library
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted,
only the first paragraph of Sec. 8(a) on the ground that it violates the due process
clause, right of association, and freedom of expression and that it is an ex post
facto law.chanroblesvirtualawlibrarychanrobles virtual law library
The first three grounds were overruled by this Court when it held that the
questioned provision is a valid limitation on the due process, freedom of
expression, freedom of association, freedom of assembly and equal protection
clauses; for the same is designed to prevent the clear and present danger of the
twin substantive evils, namely, the prostitution of electoral process and denial of
the equal protection of the laws. Moreover, under the balancing-of-interests test,
the cleansing of the electoral process, the guarantee of equal change for all
candidates, and the independence of the delegates who must be "beholden to no
one but to God, country and conscience," are interests that should be accorded
primacy.1chanrobles virtual law library
The petitioner should therefore be accordingly guided by the pronouncements in
the cases of Imbong and Gonzales. 2
The claim of petitioner that the challenged provision constitutes an ex post facto
law is likewise untenable.chanroblesvirtualawlibrarychanrobles virtual law
library
An ex post facto law is one which:.
(1) makes criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act;chanrobles virtual law library
(2) aggravates a crime, or makes it greater than it was, when
committed;chanrobles virtual law library
(3) changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed;chanrobles virtual law library
(4) alters the legal rules of evidence, and authorizes conviction upon less or
different testimony than the law required at the time of the commission of the
offense;chanrobles virtual law library
(5) assuming to regulate civil rights and remedies only, in effect imposes penalty
or deprivation of a right for something which when done was lawful;
andchanrobles virtual law library
(6) deprives a person accused of a crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or acquittal,
or a proclamation of amnesty.3chanrobles virtual law library
From the aforesaid definition as well as classification of ex post facto laws, the
constitutional inhibition refers only to criminal laws which are given retroactive
effect.4chanrobles virtual law library
While it is true that Sec. 18 penalizes a violation of any provision of R.A. No.
6132 including Sec. 8(a) thereof, the penalty is imposed only for acts committed
after the approval of the law and not those perpetrated prior thereto. There is
nothing in the law that remotely insinuates that Secs. 8(a) and 18, or any other
provision thereof, shall apply to acts carried out prior to its approval. On the
contrary, See. 23 directs that the entire law shall be effective upon its approval.
It was approved on August 24, 1970.chanroblesvirtualawlibrarychanrobles
virtual law library
WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of
Sec. 8(a) of R.A. No. 6132 is not unconstitutional. Without costs.
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ.,
concur.chanroblesvirtualawlibrarychanrobles virtual law library
Zaldivar, J., reserves his vote.chanroblesvirtualawlibrarychanrobles virtual law
library
Concepcion, C.J., is on leave.
chanrobles virtual law library
chanrobles virtual law library
Separate Opinions
FERNANDO, J., concurring and dissenting: chanrobles virtual law library
Concurs and dissents in accordance with his separate opinion in Imbong v.
Comelec, L-32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:chanrobles virtual law library
Reiterates his views in Gonzales and Imbong insofar as they are relevant to the
issues in this case, dissents, even as agrees that Republic Act 6132 is not ex post
facto.
VILLAMOR, J., concurring:chanrobles virtual law library
Concurs in the sense that the law is declared not ex post facto law and dissents
as to the rest.
TEEHANKEE, J., dissenting:chanrobles virtual law library
The Court's decision reaffirms its split-vote ruling last September 11, 1970
in Imbong vs. Ferrer and Gonzales vs. Comelec1upholding the constitutionality
of the first paragraph of section 8(a) of Republic Act 6132. Inasmuch as I was
unable to participate in the said cases, 2 I have expressed my contrary view in
my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3that the challenged
provision, together with the Act's other restrictions and strictures enumerated
therein, "oppressively and unreasonably straitjacket the candidates as well as the
electorate and gravely violate the constitutional guaranties of freedom of
expression, freedom of the press and freedom of association, and, deny due
process and the equal protection of the laws."chanrobles virtual law library
I therefore dissent from the Court's decision at bar for the same reason and
considerations stated in my separate dissenting opinion in the case
of Badoy.chanroblesvirtualawlibrarychanrobles virtual law library
I only wish to add a few words on the statements in the main opinion in Imbong-
Gonzales that "(W)hile it may be true that a party's support of a candidate is not
wrongper se, it is equally true that Congress in the exercise of the broad law-
making authority can declare certain acts as mala prohibitawhen justified by the
exigencies of the times. One such act is the party or organization support
prescribed in Sec. 8(a), which ban is a valid limitation on the freedom of
association as well as expression, for the reasons aforestated. Senator Tolentino
emphasized that 'equality of chances may be better attained by banning all
organization support.' "chanrobles virtual law library
I trust that said statements were not intended, and should not be construed, as
endorsing the contention of Senator Tolentino, the Act's sponsor, that "(T)he
protection of the Constitution cannot be invoked for the right of association
when the purpose is a malum prohibitum because such purpose would be
"contrary to law" " and "(O)nce the ban (on party and organization support) is
approved into law, the freedom of association cannot be invoked against it"
since the Constitution decrees only that "(T)he right to form associations or
societiesfor purposes not contrary to law shall not be abridged."4chanrobles
virtual law library
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of
freedom of association which has its root in the Malolos Constitution would
render sterile and meaningless the Constitutional safeguard, should Congress be
conceded, in the exercise of its broad law-making authority, the power to strike
down at any time associations and societies by the simple expedient of declaring
their purposes or certain activities, not wrong per se as "contrary to law" or mala
prohibita. I believe that such a concept begs the question. Obviously, the word
"law" in the qualifying clause "for purposes not contrary to law" does not mean
that an enactment of the legislature forecloses the question with finality and
sounds the death-knell. Laws that would regulate the purposes for which
associations and societies may be formed or would declare their purposes mala
prohibita must pass the usual constitutional test of reasonableness and
furthermore, must not abridge freedom of speech and press. 5chanrobles virtual
law library
Separate Opinions
FERNANDO, J., concurring and dissenting:
Concurs and dissents in accordance with his separate opinion in Imbong v.
Comelec, L-32432 and Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
Reiterates his views in Gonzales and Imbong insofar as they are relevant to the
issues in this case, dissents, even as agrees that Republic Act 6132 is not ex post
facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and dissents
as to the rest.
TEEHANKEE, J., dissenting:.
The Court's decision reaffirms its split-vote ruling last September 11, 1970
in Imbong vs. Ferrer and Gonzales vs. Comelec1upholding the constitutionality
of the first paragraph of section 8(a) of Republic Act 6132. Inasmuch as I was Republic of the Philippines
unable to participate in the said cases, 2 I have expressed my contrary view in SUPREME COURT
my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3that the challenged Manila
provision, together with the Act's other restrictions and strictures enumerated
therein, "oppressively and unreasonably straitjacket the candidates as well as the
EN BANC
electorate and gravely violate the constitutional guaranties of freedom of
expression, freedom of the press and freedom of association, and, deny due
process and the equal protection of the laws." G.R. Nos. L-33466-67 April 20, 1983

I therefore dissent from the Court's decision at bar for the same reason and PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
considerations stated in my separate dissenting opinion in the case of Badoy. vs.
MAMERTO NARVAEZ, defendant-appellant.
I only wish to add a few words on the statements in the main opinion in Imbong-
Gonzales that "(W)hile it may be true that a party's support of a candidate is not The Solicitor General for plaintiff-appellee.
wrongper se, it is equally true that Congress in the exercise of the broad law-
making authority can declare certain acts as mala prohibitawhen justified by the Gonzalo B. Callanta (counsel de oficio) for defendant-appellant.
exigencies of the times. One such act is the party or organization support
prescribed in Sec. 8(a), which ban is a valid limitation on the freedom of
association as well as expression, for the reasons aforestated. Senator Tolentino
emphasized that 'equality of chances may be better attained by banning all MAKASIAR, J.:
organization support.' "
This is an appeal from the decision of the Court of First Instance of South
I trust that said statements were not intended, and should not be construed, as Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which,
endorsing the contention of Senator Tolentino, the Act's sponsor, that "(T)he after a joint trial, resulted in the conviction of the accused in a decision rendered
protection of the Constitution cannot be invoked for the right of association on September 8, 1970, with the following pronouncement:
when the purpose is a malum prohibitum because such purpose would be
"contrary to law" " and "(O)nce the ban (on party and organization support) is
Thus, we have a crime of MURDER qualified by treachery
approved into law, the freedom of association cannot be invoked against it"
with the aggravating circumstance of evident premeditation
since the Constitution decrees only that "(T)he right to form associations or
offset by the mitigating circumstance of voluntary surrender.
societiesfor purposes not contrary to law shall not be abridged."4
The proper penalty imposable, therefore, is RECLUSION
PERPETUA (Arts. 248 and 64, Revised Penal Code).
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of
freedom of association which has its root in the Malolos Constitution would
Accordingly, finding Mamerto Narvaez guilty beyond
render sterile and meaningless the Constitutional safeguard, should Congress be
reasonable doubt of the crime of murder,
conceded, in the exercise of its broad law-making authority, the power to strike
down at any time associations and societies by the simple expedient of declaring
their purposes or certain activities, not wrong per se as "contrary to law" or mala (a) In Criminal Case No. 1815, he is hereby sentenced to
prohibita. I believe that such a concept begs the question. Obviously, the word RECLUSION PERPETUA, to indemnify the heirs of the
"law" in the qualifying clause "for purposes not contrary to law" does not mean deceased Davis Q. Fleischer in the sum of P 12,000.00 as
that an enactment of the legislature forecloses the question with finality and compensatory damages, P 10,000.00 as moral damages, P
sounds the death-knell. Laws that would regulate the purposes for which 2,000.00 as attorney's fees, the offended party having been
associations and societies may be formed or would declare their purposes mala represented by a private prosecutor, and to pay the costs;
prohibita must pass the usual constitutional test of reasonableness and
furthermore, must not abridge freedom of speech and press. 5
 (b) In Criminal Case No. 1816, he is hereby sentenced to
RECLUSION PERPETUA, to indemnify the heirs of the
deceased Flaviano Rubia in the sum of P12,000.00 as
compensatory damages, P10,000.00 as moral damages,
P2,000.00 as attorney's fees, the offended party having been
represent by a private prosecutor, and to pay the costs (p. 48,
rec.).
The facts are summarized in the People's brief, as follows:
At about 2:30 in the afternoon of August 22, 1968, Graciano
Juan, Jesus Verano and Cesar Ibanez together with the two
deceased Davis Fleischer and Flaviano Rubia, were fencing
the land of George Fleischer, father of deceased Davis
Fleischer. The place was in the boundary of the highway and
the hacienda owned by George Fleischer. This is located in the
municipality of Maitum, South Cotabato. At the place of the
fencing is the house and rice drier of appellant Mamerto
Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant
was taking his rest, but when he heard that the walls of his
house were being chiselled, he arose and there he saw the
fencing going on. If the fencing would go on, appellant would
be prevented from getting into his house and the bodega of his
ricemill. So he addressed the group, saying 'Pare, if possible
you stop destroying my house and if possible we will talk it
over what is good,' addressing the deceased Rubia, who is
appellant's compadre. The deceased Fleischer, however,
answered: 'No, gademit, proceed, go ahead.' Appellant
apparently lost his equilibrium and he got his gun and shot
Fleischer, hitting him. As Fleischer fell down, Rubia ran
towards the jeep, and knowing there is a gun on the jeep,
appellant fired at Rubia, likewise hitting him (pp. 127-133,
t.s.n., Defense transcript). Both Fleischer and Rubia died as a
result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9,
Appellant's Brief, p.161, rec.).
It appears, however, that this incident is intertwined with the long drawn out
legal battle between the Fleischer and Co., Inc. of which deceased Fleischer was
the secretary-treasurer and deceased Rubia the assistant manager, on the one
hand, and the land settlers of Cotabato, among whom was appellant.
From the available records of the related cases which had been brought to the
Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on
certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the
following antecedent facts:
Appellant was among those persons from northern and central Luzon who went
to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a
separate municipality of South Cotabato. He established his residence therein,
built his house, cultivated the area, and was among those who petitioned then
President Manuel L. Quezon to order the subdivision of the defunct Celebes
Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for
distribution among the settlers.
Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an
American landowner in Negros Oriental, filed sales application No. 21983 on
June 3, 1937 over the same area formerly leased and later abandoned by Celebes
Plantation Company, covering 1,017.2234 hectares.
Meanwhile, the subdivision was ordered and a public land surveyor did the
actual survey in 1941 but the survey report was not submitted until 1946 because
of the outbreak of the second world war. According to the survey, only 300
hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside
for Sales Application No. 21983, while the rest were subdivided into sublots of 5
to 6 hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-
45504).
The 300 hectares set aside for the sales application of Fleischer and Company
was declared open for disposition, appraised and advertised for public auction.
At the public auction held in Manila on August 14, 1948, Fleischer and
Company was the only bidder for P6,000.00. But because of protests from the
settlers the corresponding award in its favor was held in abeyance, while an
investigator was sent by the Director of Lands to Kiamba in the person of Atty.
Jose T. Gozon Atty. Gozon came back after ten days with an amicable
settlement signed by the representative of the settlers. This amicable settlement
was later repudiated by the settlers, but the Director of Lands, acting upon the
report of Atty. Gozon, approved the same and ordered the formal award of the
land in question to Fleischer and Company. The settlers appealed to the
Secretary of Agriculture and Natural Resources, who, however, affirmed the
decision in favor of the company.
On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First
Instance of Cotabato which then consisted only of one sala, for the purpose of
annulling the order of the Secretary of Agriculture and Natural Resources which
affirmed the order of the Director of Lands awarding the contested land to the
company. The settlers as plaintiffs, lost that case in view of the amicable
settlement which they had repudiated as resulting from threats and intimidation,
deceit, misrepresentation and fraudulent machination on the part of the
company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which
likewise affirmed on August 16, 1965 the decision of the Court of First Instance
in favor of the company.
This resulted in the ouster of the settlers by an order of the Court of First
Instance dated September 24, 1966, from the land which they had been
occupying for about 30 years. Among those ejected was the appellant who, to
avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around
P20,000.00, and transferred to his other house which he built in 1962 or 1963
near the highway. The second house is not far from the site of the dismantled
house. Its ground floor has a store operated by Mrs. June Talens who was
renting a portion thereof. He also transferred his store from his former residence
to the house near the highway. Aside from the store, he also had a rice mill
located about 15 meters east of the house and a concrete pavement between the
rice mill and the house, which is used for drying grains and copra.
On November 14, 1966, appellant was among the settlers on whose behalf Jose
V. Gamboa and other leaders filed Civil Case No. 755 in the Court of First
Instance of Cotabato, Branch I. to obtain an injunction or annulment of the order
of award with prayer for preliminary injunction. During the pendency of this
case, appellant on February 21, 1967 entered into a contract of lease with the
company whereby he agreed to lease an area of approximately 100 to 140 square
meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for
Defense) for a consideration of P16.00 monthly. According to him, he signed the
contract although the ownership of the land was still uncertain, in order to avoid
trouble, until the question of ownership could be decided. He never paid the
agreed rental, although he alleges that the milling job they did for Rubia was
considered payment. On June 25, 1968, deceased Fleischer wrote him a letter
with the following tenor:
You have not paid six months rental to Fleischers & Co., Inc.
for that portion of land in which your house and ricemill are
located as per agreement executed on February 21, 1967. You
have not paid as as even after repeated attempts of collection
made by Mr. Flaviano Rubia and myself.
In view of the obvious fact that you do not comply with the
agreement, I have no alternative but to terminate our
agreement on this date.
I am giving you six months to remove your house, ricemill,
bodega, and water pitcher pumps from the land of Fleischers
& Co., Inc. This six- month period shall expire on December
31, 1966.
In the event the above constructions have not been removed
within the six- month period, the company shall cause their
immediate demolition (Exhibit 10, p. 2, supra).
On August 21, 1968, both deceased, together with their laborers, commenced
fencing Lot 38 by putting bamboo posts along the property line parallel to the
highway. Some posts were planted right on the concrete drier of appellant,
thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the
last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence,
when finished, would have the effect of shutting off the accessibility to
appellant's house and rice mill from the highway, since the door of the same
opens to the Fleischers' side. The fencing continued on that fateful day of
August 22, 1968, with the installation of four strands of barbed wire to the posts.
At about 2:30 p.m. on the said day, appellant who was taking a nap after
working on his farm all morning, was awakened by some noise as if the wall of
his house was being chiselled. Getting up and looking out of the window, he
found that one of the laborers of Fleischer was indeed chiselling the wall of his
house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing
the barbed wire and deceased Fleischer was commanding his laborers. The jeep
used by the deceased was parked on the highway. The rest of the incident is
narrated in the People's Brief as above-quoted. Appellant surrendered to the
police thereafter, bringing with him shotgun No. 1119576 and claiming he shot
two persons (Exh. Pp. 31, Defense Exhibits).
Appellant now questions the propriety of his conviction, assigning the following
errors:
First Assignment of Error: That the lower court erred in
convicting defendant-appellant despite the fact that he acted in
defense of his person; and
Second Assignment of Error: That the court a quo also erred in
convicting defendant-appellant although he acted in defense of
his rights (p. 20 of Appellant's Brief, p. 145, rec.).
The act of killing of the two deceased by appellant is not disputed. Appellant
admitted having shot them from the window of his house with the shotgun
which he surrendered to the police authorities. He claims, however, that he did
so in defense of his person and of his rights, and therefore he should be exempt
from criminal liability.
Defense of one's person or rights is treated as a justifying circumstance under
Art. 11, par. 1 of the Revised Penal Code, but in order for it to be appreciated,
the following requisites must occur:
First. Unlawful aggression;
 Second. Reasonable necessity of the means employed to
prevent or repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself (Art. 11, par. 1, Revised Penal Code, as
amended).
The aggression referred to by appellant is the angry utterance by deceased
Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer to
his request addressed to his compadre, the deceased Rubia, when he said, "Pare,
hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n.,
Vol. 6). This was in reaction to his having been awakened to see the wall of his
house being chiselled. The verbal exchange took place while the two deceased
were on the ground doing the fencing and the appellant was up in his house
looking out of his window (pp. 225-227, supra). According to appellant,
Fleischer's remarks caused this reaction in him: "As if, I lost my senses and
unknowingly I took the gun on the bed and unknowingly also I shot Mr.
Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the
shooting of Rubia, appellant testified:
When I shot Davis Fleischer, Flaviano Rubia was nailing and
upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and
when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep
and knowing that there was a firearm in the jeep and thinking
that if he will take that firearm he will kill me, I shot at him (p.
132, supra, Emphasis supplied).
The foregoing statements of appellant were never controverted by the
prosecution. They claim, however, that the deceased were in lawful exercise of
their rights of ownership over the land in question, when they did the fencing
that sealed off appellant's access to the highway.
A review of the circumstances prior to the shooting as borne by the evidence
reveals that five persons, consisting of the deceased and their three laborers,
were doing the fencing and chiselling of the walls of appellant's house. The
fence they were putting up was made of bamboo posts to which were being
nailed strands of barbed wire in several layers. Obviously, they were using tools
which could be lethal weapons, such as nail and hammer, bolo or bamboo cutter,
pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that
the jeep which they used in going to the place was parked just a few steps away,
and in it there was a gun leaning near the steering wheel. When the appellant
woke up to the sound of the chiselling on his walls, his first reaction was to look
out of the window. Then he saw the damage being done to his house,
compounded by the fact that his house and rice mill will be shut off from the
highway by the fence once it is finished. He therefore appealed to his compadre,
the deceased Rubia, to stop what they were doing and to talk things over with
him. But deceased Fleischer answered angrily with 'gademit' and directed his
men to proceed with what they were doing.
The actuation of deceased Fleischer in angrily ordering the continuance of the
fencing would have resulted in the further chiselling of the walls of appellant's
house as well as the closure of the access to and from his house and rice mill-
which were not only imminent but were actually in progress. There is no
question, therefore, that there was aggression on the part of the victims:
Fleischer was ordering, and Rubia was actually participating in the fencing. This
was indeed aggression, not on the person of appellant, but on his property rights.
The question is, was the aggression unlawful or lawful? Did the victims have a
right to fence off the contested property, to destroy appellant's house and to shut
off his ingress and egress to his residence and the highway?
Article 30 of the Civil Code recognizes the right of every owner to enclose or
fence his land or tenements.
However, at the time of the incident on August 22, 1968, Civil Case no. 755 for
annulment of the order of award to Fleischer and Company was still pending in
the Court of First Instance of Cotabato. The parties could not have known that
the case would be dismissed over a year after the incident on August 22, 1968,
as it was dismissed on January 23, 1970 on ground of res judicata, in view of
the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in
1950 for the annulment of the award to the company, between the same parties,
which the company won by virtue of the compromise agreement in spite of the
subsequent repudiation by the settlers of said compromise agreement; and that
such 1970 dismissal also carried the dismissal of the supplemental petition filed
by the Republic of the Philippines on November 28, 1968 to annul the sales
patent and to cancel the corresponding certificate of title issued to the company,
on the ground that the Director of Lands had no authority to conduct the sale due
to his failure to comply with the mandatory requirements for publication. The
dismissal of the government's supplemental petition was premised on the ground
that after its filing on November 28, 1968, nothing more was done by the
petitioner Republic of the Philippines except to adopt all the evidence and
arguments of plaintiffs with whom it joined as parties-plaintiffs.
Hence, it is reasonable to believe that appellant was indeed hoping for a
favorable judgment in Civil Case No. 755 filed on November 14, 1966 and his
execution of the contract of lease on February 21, 1967 was just to avoid
trouble. This was explained by him during cross-examination on January 21,
1970, thus:
 It happened this way: we talked it over with my Mrs. that we
better rent the place because even though we do not know who
really owns this portion to avoid trouble. To avoid trouble we
better pay while waiting for the case because at that time, it
was not known who is the right owner of the place. So we
decided until things will clear up and determine who is really
the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).
In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2,
Defense Exhibits) within which to vacate the land. He should have allowed
appellant the peaceful enjoyment of his properties up to that time, instead of
chiselling the walls of his house and closing appellant's entrance and exit to the
highway.
The following provisions of the Civil Code of the Philippines are in point:
Art. 536. In no case may possession be acquired through force
or intimidation as long as there is a possessor who objects
thereto. He who believes that he has an action or a right to
deprive another of the holding of a thing must invoke the aid
of the competent court, if the holder should refuse to deliver
the thing.
Art. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
protected in or restored to said possession by the means
established by the laws and the Rules of Court (Articles 536
and 539, Civil Code of the Philippines).
Conformably to the foregoing provisions, the deceased had no right to destroy or
cause damage to appellant's house, nor to close his accessibility to the highway
while he was pleading with them to stop and talk things over with him. The
assault on appellant's property, therefore, amounts to unlawful aggression as
contemplated by law.
Illegal aggression is equivalent to assault or at least threatened
assault of immediate and imminent kind (People vs.
Encomiendas, 46 SCRA 522).
In the case at bar, there was an actual physical invasion of appellant's property
which he had the right to resist, pursuant to Art. 429 of the Civil Code of the
Philippines which provides:
Art. 429. The owner or lawful possessor of a thing has the
right to exclude any person from the enjoyment and disposal
thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of his
property (Emphasis supplied).
The reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights under paragraph 1 of
Article 11, Revised Penal Code. When the appellant fired his shotgun from his
window, killing his two victims, his resistance was disproportionate to the
attack.
WE find, however, that the third element of defense of property is present, i.e.,
lack of sufficient provocation on the part of appellant who was defending his
property. As a matter of fact, there was no provocation at all on his part, since he
was asleep at first and was only awakened by the noise produced by the victims
and their laborers. His plea for the deceased and their men to stop and talk things
over with him was no provocation at all.
Be that as it may, appellant's act in killing the deceased was not justifiable, since
not all the elements for justification are present. He should therefore be held
responsible for the death of his victims, but he could be credited with the special
mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article
13 of the Revised Penal Code.
The crime committed is homicide on two counts. The qualifying circumstance of
treachery cannot be appreciated in this case because of the presence of
provocation on the part of the deceased. As WE held earlier in People vs.
Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is
therefore lacking.
Moreover, in order to appreciate alevosia, "it must clearly appear that the
method of assault adopted by the aggressor was deliberately chosen with a
special view to the accomplishment of the act without risk to the assailant from
any defense that the party assailed might have made. This cannot be said of a
situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil.
481).
WE likewise find the aggravating (qualifying) circumstance of evident
premeditation not sufficiently established. The only evidence presented to prove
this circumstance was the testimony of Crisanto Ibañez, 37 years old, married,
resident of Maitum, South Cotabato, and a laborer of Fleischer and Company,
which may be summarized as follows:
On August 20, 1968 (two days before the incident) at about
7:00 A.M., he was drying corn near the house of Mr. and Mrs.
 Mamerto Narvaez at the crossing, Maitum, South Cotabato,
when the accused and his wife talked to him. Mrs. Narvaez
asked him to help them, as he was working in the hacienda.
She further told him that if they fenced their house, there is a
head that will be broken. Mamerto Narvaez added 'Noy, it is
better that you will tell Mr. Fleischer because there will be
nobody who will break his head but I will be the one.' He
relayed this to Mr. Flaviano Rubia, but the latter told him not
to believe as they were only Idle threats designed to get him
out of the hacienda (pp. 297-303, t.s.n., Vol. 2).
This single evidence is not sufficient to warrant appreciation of the aggravating
circumstance of evident premeditation. As WE have consistently held, there
must be "direct evidence of the planning or preparation to kill the victim, .... it is
not enough that premeditation be suspected or surmised, but the criminal intent
must be evidenced by notorious outward acts evincing the determination to
commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be
a "showing" that the accused premeditated the killing; that the culprit clung to
their (his) premeditated act; and that there was sufficient interval between the
premeditation and the execution of the crime to allow them (him) to reflect upon
the consequences of the act" (People vs. Gida, 102 SCRA 70).
Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the
deceased Davis Fleischer, neutralizes his credibility.
Since in the case at bar, there was no direct evidence of the planning or
preparation to kill the victims nor that the accused premeditated the killing, and
clung to his premeditated act, the trial court's conclusion as to the presence of
such circumstance may not be endorsed.
Evident premeditation is further negated by appellant pleading with the victims
to stop the fencing and destroying his house and to talk things over just before
the shooting.
But the trial court has properly appreciated the presence of the mitigating
circumstance of voluntary surrender, it appearing that appellant surrendered to
the authorities soon after the shooting.
Likewise, We find that passion and obfuscation attended the commission of the
crime. The appellant awoke to find his house being damaged and its accessibility
to the highway as well as of his rice mill bodega being closed. Not only was his
house being unlawfully violated; his business was also in danger of closing
down for lack of access to the highway. These circumstances, coming so near to
the time when his first house was dismantled, thus forcing him to transfer to his
only remaining house, must have so aggravated his obfuscation that he lost
momentarily all reason causing him to reach for his shotgun and fire at the
victims in defense of his rights. Considering the antecedent facts of this case,
where appellant had thirty years earlier migrated to this so-called "land of
promise" with dreams and hopes of relative prosperity and tranquility, only to
find his castle crumbling at the hands of the deceased, his dispassionate plea
going unheeded-all these could be too much for any man-he should be credited
with this mitigating circumstance.
Consequently, appellant is guilty of two crimes of homicide only, the killing not
being attended by any qualifying nor aggravating circumstance, but extenuated
by the privileged mitigating circumstance of incomplete defense-in view of the
presence of unlawful aggression on the part of the victims and lack of sufficient
provocation on the part of the appellant-and by two generic mitigating
circumstance of voluntary surrender and passion and obfuscation.
Article 249 of the Revised Penal Code prescribes the penalty for homicide
as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or
two degrees shall be imposed if the deed is not wholly excusable by reason of
the lack of some of the conditions required to justify the same. Considering that
the majority of the requirements for defense of property are present, the penalty
may be lowered by two degrees, i.e., to prision correccional And under
paragraph 5 of Article 64, the same may further be reduced by one degree,
i.e., arresto mayor, because of the presence of two mitigating circumstances and
no aggravating circumstance.
The civil liability of the appellant should be modified. In the case of Zulueta vs.
Pan American World Airways (43 SCRA 397), the award for moral damages
was reduced because the plaintiff contributed to the gravity of defendant's
reaction. In the case at bar, the victims not only contributed but they actually
provoked the attack by damaging appellant's properties and business.
Considering appellant's standing in the community, being married to a municipal
councilor, the victims' actuations were apparently designed to humiliate him and
destroy his reputation. The records disclose that his wife, councilor Feliza
Narvaez, was also charged in these two cases and detained without bail despite
the absence of evidence linking her to the killings. She was dropped as a
defendant only upon motion of the prosecution dated October 31, 1968. (p. 14,
CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58,
CFI rec. of Criminal Case No. 1815).
Moreover, these cases arose out of an inordinate desire on the part of Fleischer
and Company, despite its extensive landholdings in a Central Visayan province,
to extend its accumulation of public lands to the resettlement areas of Cotabato.
Since it had the capability-financial and otherwise-to carry out its land
accumulation scheme, the lowly settlers, who uprooted their families from their
native soil in Luzon to take advantage of the government's resettlement program,
but had no sufficient means to fight the big landowners, were the ones
prejudiced. Thus, the moral and material suffering of appellant and his family
deserves leniency as to his civil liability.
Furthermore, Article 39 of the Revised Penal Code requires a person convicted
of prision correccional or arrests mayor and fine who has no property with
which to meet his civil liabilities to serve a subsidiary imprisonment at the rate
of one (1) day for each P 2.50. However, the amendment introduced by Republic
Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to
fines only and not to reparation of the damage caused, indemnification of
consequential damages and costs of proceedings. Considering that Republic Act
5465 is favorable to the accused who is not a habitual delinquent, it may be
given retroactive effect pursuant to Article 22 of the Revised Penal Code.
WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE
PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-
DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING
CIRCUMSTANCES OF VOLUNTARY SURRENDER AND
OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE,
APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT
OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH
GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA
IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT
SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR
MORAL DAMAGES AND ATTORNEY'S FEES.
CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION
FOR ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY
SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS
HEREBY ORDERED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, De Castro, Melencio-
Herrera, Escolin Vasquez and Relova, JJ., concur.
Aquino, J., is on leave.
Plana, J., in the result.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful
aggression on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to dissent
in part. It is true that Art. 429, Civil Code of the Philippines, provides that the
owner or legal possessor of a thing may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion
or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused
pleads self-defense but what is basically defended is only property.
Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on the
person of one entrusted with said property. The defense of property, whether
complete or incomplete, to be available in prosecutions for murder or homicide
must be coupled with an attack by the one getting the property on the person
defending it.
In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance
"No, gademit proceed, go ahead" is not the unlawful aggression which entitles
appellant to the pela of self-defense. I agree with the majority opinion that the
crime is homicide but without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, maximum the
sentence the appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia
of the sum of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment, but without any award for moral damages and attorney's fees.
Considering that appellant has been under detention for almost fourteen (14)
years now since August 22, 1968, he has served the penalty and should be
released.
Separate Opinions
ABAD SANTOS, J., dissenting:
I dissent. The self-defense of the Revised Penal Code refers to unlawful
aggression on persons, not property Plana, J., in the result.
GUTIERREZ, JR., J., dissenting:
While I agree with the order to release the appellant, I am constrained to dissent
in part. It is true that Art. 429, Civil Code of the Philippines, provides that the
owner or legal possessor of a thing may use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion
or usurpation of his property. It seems to me, however, that an attack on the
person defending his property is an indispensable element where an accused
pleads self-defense but what is basically defended is only property.
Defense of property is not of such importance as the right to life and defense of
property can only be invoked when it is coupled with some form of attack on the
person of one entrusted with said property. The defense of property, whether
complete or incomplete, to be available in prosecutions for murder or homicide
must be coupled with an attack by the one getting the property on the person
defending it.
In the case now before Us, there is absolutely no evidence that an attack was
attempted, much less made upon the person of appellant. The mere utterance
"No, gademit proceed, go ahead" is not the unlawful aggression which entitles
appellant to the pela of self-defense. I agree with the majority opinion that the
crime is homicide but without any privileged mitigating circumstance.
Therefore, since the appellant is guilty beyond reasonable doubt of two (2)
homicides, mitigated by the two generic mitigating circumstances of voluntary
surrender and obfuscation, without any aggravating circumstance, maximum the
sentence the appellant should have served was prision mayor plus the
indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia
of the sum of Four Thousand (P4,000.00) Pesos, without subsidiary
imprisonment, but without any award for moral damages and attorney's fees.
Considering that appellant has been under detention for almost fourteen (14)
years now since August 22, 1968, he has served the penalty and should be
released.
EN BANC
[G.R. No. 123918. December 9, 1999]
PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee, v. AUGUSTO
LORETO RINGOR, JR., accused-appellant.
DECISION
PURISIMA, J.:
For automatic review is the Decision1 ated November 13, 1995 of Branch 6 of
the Regional Trial Court in Baguio City, finding accused-appellant Augusto
Loreto Ringor, Jr. guilty of the crime of murder and sentencing him to suffer the
supreme penalty of death in Criminal Case No. 13102-R, also guilty of illegal
possession of firearms under P.D. No. 1866 in Criminal Case No. 13100-R for
and disposing thus:
WHEREFORE, Judgment is rendered as follows:
1. In Criminal Case No. 13102, the Court Finds (sic) the accused Augusto
Loreto Ringor Guilty beyond reasonable doubt of the crime of Murder defined
and penalized under Article 248 of the Revised Penal Code as amended by
Section 6, RA 7659, qualified by Treachery and as further qualified by the use of
an unlicensed firearm and hereby sentences him to suffer the supreme penalty of
Death; to indemnify the heirs of deceased Marcelino Florida, Jr., the sum of
P50,000.00 for his death and the sum of P100,000.00 as Moral damages for his
death, both indemnification being without subsidiary imprisonment in case of
insolvency and to pay the costs.
2. In Criminal Case No. 13100-R, the Court Finds (sic) accused Augusto Loreto
Ringor Guilty beyond reasonable doubt of the offense of Violation of Section 1
PD 1866 (Illegal Possession of firearm and ammunitions) as charged in the
Information and hereby sentences him, applying the Indeterminate Sentence
Law, to an imprisonment ranging from 17 years 4 months and I day as Minimum
to 20 years as Maximum and to pay the costs.
The subject gun, caliber .38 (Paltik) bearing Serial Number 853169 (Exh. A)
being the subject of the offense is hereby declared confiscated and forfeited in
favor of the State.
The accused Augusto Loreto Ringor is entitled to be credited in the service of his
sentence four fifth (4/5) of his preventive imprisonment in accordance with
Article 29 of the Revised Penal Code.
SO ORDERED.2
Filed on June 28, 1994, the Informations against accused-appellant, alleges:
In Criminal Case No. 13102-R
That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
being then armed with a Caliber 38 handgun paltick with Serial Number 853169
and with intent to kill, did then and there willfully, unlawfully, and feloniously
attack, assault and shoot MARCELINO BUSLAY FLORIDA, JR. thereby
inflicting upon the latter hypovolemic shock secondary to massive hemorrhage;
multiple gunshot wounds of the liver, stomach, small intestine and mesentric
blood vessels, which injuries directly caused his death.
That the qualifying circumstance of TREACHERY attended the commission of
the crime when the accused suddenly attacked victim and shot him several times
at the back, with the use of a handgun, thus employing means, methods of forms
in the execution thereof which tend directly and specially to insure its execution,
without risk to himself arising from the defense which the offended party might
make.
CONTRARY TO LAW.3
and in Criminal Case No. 13100-R
That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines,
and within the jurisdiction of this honorable Court, the above-named accused,
did then and there willfully, unlawfully and feloniously possess and carry
outside of his residence, a firearm, Caliber .38 revolver (Paltik) bearing Serial
Number 853169, without any legal authority or permit from any government
official or authority concerned, in violation of the above cited provision of law.
CONTRARY TO LAW.4
With the accused-appellant, assisted by counsel, entering a plea of Not Guilty
upon arraignment, a joint trial of the two cases ensued.
The inculpatory facts and circumstances sued upon are succinctly summarized in
the Appellees Brief as follows:
On June 23, 1994, at around 6:00 P.M.(sic), Fely Batanes, a waitress at Peoples
Restaurant located at Kalantiao St., Baguio City, saw appellant Ringor and his
two companions enter the restaurant. (Tsn, December 8, 1994, p. 4). After
seating themselves, the group ordered a bottle of gin (ibid., p. 6). Minutes later,
appellant approached one of the tables where Florida, the restaurants cook was
drinking beer. Without any warning, appellant pulled Floridas hair and poked a
knife on the latters throat. Florida stood up and pleaded with appellant not to
harm him (ibid., p. 7). Appellant relented and released his grip on Florida.
Thereafter, he left the restaurant together with his companions. However, a few
minutes latter he was back (ibid, p.8).
Appellant brandished a gun and menacingly entered the restaurant. Not
encountering any resistance, he thus proceeded to the kitchen where Florida
worked (ibid). Stealthily approaching Florida from behind, appellant fired six
successive shots at Florida who fell down (Ibid., p. 9). His evil deed
accomplished, appellant left the kitchen and fled (ibid).
Appellant was chased by a man who while running, shouted at onlookers that
the person he was running after was armed and had just killed somebody.
Alerted, SPO2 Fernandez, who was then in the vicinity, went into action and
nabbed appellant. He frisked appellant and recovered from him a Paltik
revolver, caliber. 38, with Serial Number 853169 (Exh. A). He checked the
revolvers cylinder and found six empty cartridges (Exhs. T to T-6). He noted that
it smelled of gunpowder. He and PO1 Ortega turned over appellant and the
confiscated firearm to the Investigation Division of the Baguio Police and then
executed a Joint Affidavit of Arrest (Exhibit O). On the same night, Fely Batanes
gave her sworn statement (Exhibit E) to the Baguio Police wherein she
positively identified appellant as the assailant.
xxx xxx xxx
xxx xxx xxx
NBI Forensic Chemist Ms. Carina Javier found both hands of appellant positive
for nitrates as stated in her Chemist Report No. C-94-22. She conducted a
microscopic chemical examination on the subject firearm and found that the gun
was fired within one week prior to June 27, 1994.
Elmer Nelson Piedad, Ballistician of the Firearm Investigation Division, NBI,
Manila, tested and concluded that the slugs recovered from the victim were fired
from appellants firearm. Upon verification from the Firearms Explosive
division, Camp Crame, Quezon City, it was found that appellant is not a
licensed firearm holder nor, was the subject firearm duly registered with the
said office (Exh. A).5cräläwvirtualibräry
The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased
yielded a Necropsy Report, which states:
POSTMORTEM FINDINGS
Body of a male, 1.66 m. height, medium built, with complete rigor mortis,
lividity well developed on the dependent parts, cloudy cornea and dilated pupils
with very pale papebral conjunctive.
Gunshot wounds: GSW no.1 measuring 10 x 10 mm. serrated edges, positive
powder burns located at the left mid clavicular line, posterior, 2 inches below
the shoulder. It was directed downward towards the mid-body, penetrating the
skin. (sic) soft tissue, middle 3rd of the 3rd rib, the upper and lower lobes of the
left lung to the diaphragm, through and through the stomach, lacerating the
superior mesentric vessels, perforating the small intestine then lodged at the
superior surface of the urinary bladder (slug was recovered marked no. 1)
GSW no.2 measures 8 mm. diameter, positive powder burns, located on the right
shoulder near the s. joint posteriorly, penetrating the skin, soft tissue, then
lodged at the surface of the fractured surgical neck of the humorous (sic) (slug
recovered). Marked no. 2.
GSW no. 3 measures 8 mm. Diameter, positive powder burns, located on the
right shoulder posteriorly near the joint penetrating the skin, soft tissues, and
the head of the Humorous, (sic) then dislodged form the same entry point.
GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion superiorly located
at the anterior left parasternal line at the level of the 6th ICS. It was directed
downward towards the posterior of the body, penetrating the skin, soft tissue,
the left lobe of the liver with partial avulsion, then perforating the stomach
through and though the duodenum lumbar muscle then lodged underneath the
skin, (1) paravertebral, level of L3 (slug recovered marked no. 4).
CAUSE OF DEATH:
HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE;
MULTIPLE GUNSHOT WOUND(S) OF THE LIVER, STOMACH, SMALL
INTESTINE AND MESENTRIC BLOOD VESSELS. Multiple Gunshot Wound(s)
of the body.6
Accused-appellant admitted shooting the victim but theorized that he acted in
self-defense. As embodied in the Appellants Brief, the defense version runs thus:
3.01 On June 23, 1994, at a little after five oclock in the afternoon, appellant,
together with two (2) other companions, entered the Peoples Restaurant in
Baguio City to order drinks. They sat at a table next to another then occupied by
Marcelino B. Florida, Jr. (Florida) and a woman companion (TSN, Testimony of
Augusto Loreto G. Ringor, Jr., May 4, 1995, pp. 3-6).
3.02 Soon after receiving their orders, appellants companion, Ramon
Fernandez, stood up and approached Florida to inquire about his (Fernandez)
brother, Cesar. Florida angrily responded to the query and said, Putang ina
ninyo! anong pakialam ko diyan!
3.03 A quarrel thereafter ensued between Fernandez and Florida prompting the
appellant to intervene and pacify Fernandez. When Fernandez drew out a gun
from his waist, appellant immediately seized the same directing his friend to
leave the restaurant before he started hurting other people with his gun. No
sooner had Fernandez stepped out, however, Florida, armed with a bolo, came
charging in from the kitchen and headed towards the appellant. (Ibid, pp. 6 - 7)
3.04 Surprised, appellant shot Florida with the gun he was holding just as the
latter was about to hit him with the bolo. Thereafter, appellant put the gun on
the table and walked out of the restaurant. Once already outside the restaurant,
appellants other companion, Virgilio, followed him and handed to him the gun
he (appellant) left at the table. He then proceeded to surrender the gun and
report the incident at the nearest police station. (Ibid, pp. 8 - 9)
3.05 Before appellant could reach the police station, however, appellant was
already arrested by off-duty policeman who brought him back to the Peoples
Restaurant. Appellant was thereafter incarcerated at the Baguio City Police
Station. (Ibid, pp. 10 - 12)7
On November 13, 1995, the trial court handed down the decision under
automatic review. Accused-appellant contends that:
I
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR
SIMPLE ILLEGAL POSSESSION OF FIREARMS AND SENTENCING HIM
TO SUFFER AN INDETERMINATE SENTENCE OF 17 YEARS AND 1
DAY AS MINIMUM TO 20 YEARS AS MAXIMUM.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF
MURDER.
III
THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE
ACCUSED TO DEATH ON THE GROUNDS THAT: (i) THE CHARGE OF
MURDER WAS NOT PROVED BY THE PROSECUTION; AND (ii)
ASSUMING ARGUENDO THAT MURDER WAS COMMITTED BY
APPELLANT, THE APPROPRIATE PENALTY FOR THE OFFENSE IS
RECLUSION PERPETUA THERE BEING NO AGGRAVATING
CIRCUMSTANCE TO RAISE THE PENALTY TO DEATH. 8
Well-settled is the rule that in interposing self-defense, the offender admits
authorship of the killing. The onus probandi is thus shifted to him to prove the
elements of self-defense and that the killing was justified;9otherwise, having
admitted the killing, conviction is inescapable. Concomitantly, he must rely on
the strength of his own evidence and not on the weakness of the prosecutions
evidence.10
For self-defense to prosper, it must be established that: (1) there was unlawful
aggression by the victim; (2) that the means employed to prevent or repel such
aggression was reasonable; and (3) that there was lack of sufficient provocation
on the part of the person defending himself.11
In the case at bar, accused-appellant failed to prove the element of unlawful
aggression. The allegation that the victim allegedly went out of the kitchen
armed with a bolo, and was about to hack him (accused-appellant) who was then
at an almost prone lying position on the table he was occupying, 12 is a self-
serving and unconvincing statement which did not in anyway constitute the
requisite quantum of proof for unlawful aggression. Prosecution witness Fely
Batanes, a waitress in the restaurant where the shooting incident occurred, was
firm in her declaration that the victim was in the kitchen unarmed 13 hen the
accused-appellant shot him. The victim had no weapon or bolo. He was neither
threatening to attack nor in any manner manifesting any aggressive act which
could have imperiled accused-appellants safety and well-being.
No improper motive having been shown on the part of Fely Batanes to testify
falsely against accused-appellant or to implicate him in the commission of the
crime, the logical conclusion is that there was no such improper motive and her
testimony is worthy of full faith and credit.14
What is more, the testimony of Fely Batanes is buttressed by the fact that
immediately after the incident, the body of the victim was found lying in the
kitchen and not outside; thus weakening further the theory of accused-appellant
that he shot the victim while they were at the dining area.15
Then too, the nature, location and number of gunshot wounds inflicted on the
deceased belie accused-appellants theory of self-defense.16 The deceased
sustained three gun shot wounds on the back and one in front. Dr. John Tinoyan,
who conducted the autopsy on the cadaver of the victim, testified that the
gunshot wound on the frontal portion of the victims body showed a downward
trajectory of the bullet on his chest, penetrating the liver, perforating the
stomach down to the small intestine, and then lodged underneath the
skin.17 Verily, such finding negates the claim of accused-appellant that he shot
the victim while he was at an almost prone lying position and the victim was
standing in front of him about to strike with a bolo. If this were true, the
trajectory of the bullet should have been upward or better still, it should have
been at the level at which the gun was fired while he (accused-appellant) was in
a prone lying position.
Rather telling are the three gunshot wounds on the back of the victim, which
wounds showed traces of gunpowder which, according to Dr. Tinoyan, indicated
that the weapon used was at a distance of less than one meter.18 Evidently,
accused-appellant stealthily approached the victim from behind and fired at him
six successive shots, four of which hit him, to ensure his death. 19 If he shot the
victim merely to defend himself, there would have been no cause for accused-
appellant to pump several bullets into the body of the victim.
In light of the foregoing, the imputation of unlawful aggression on the part of the
victim cannot be believed. Absent the element of unlawful aggression by the
deceased, there can be no self-defense, complete or incomplete. If there was no
unlawful aggression, there was nothing to prevent or repel and the second and
third requisites of self-defense would have no basis.20
The Court a quo properly appreciated the aggravating circumstance of treachery
which qualified the crime to murder. It was clearly established that the accused-
appellant fired six successive shots on the victim, suddenly, without warning,
and from behind, giving the victim no chance to flee or to prepare for his
defense or to put up the least resistance to such sudden assault. There is
treachery when the means, manner or method of attack employed by the
offender offered no risk to himself from any defensive or retaliatory act which
the victim might have taken.21
All things studiedly considered and viewed in proper perspective, the mind of
the Court can rest easy on a finding that accused-appellant Augusto Loreto
Ringor, Jr. is guilty beyond reasonable doubt of the crime of murder, and did not
act in self-defense.
Article 248 of the Revised Penal Code, as amended, prescribes the penalty
of reclusion perpetua to death for the crime of murder. When, as in this case,
neither aggravating nor mitigating circumstance is attendant, the lesser penalty
of reclusion perpetua has to be applied,22 in accordance with Article 63(2) of the
Revised Penal Code.
With respect to the conviction of accused-appellant for illegal possession of
firearms under P. D. No. 1866, it was held in the case of People vs. Molina 23 nd
reiterated in the recent case of People vs. Ronaldo Valdez,24that in cases where
murder or homicide is committed with the use of an unlicensed firearm, there
can be no separate conviction for the crime of illegal possession of firearms
under P.D. No. 1866 in view of the amendments introduced by Republic Act No.
8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply
considered as an aggravating circumstance in the murder or homicide and no
longer as a separate offense. Furthermore, the penalty for illegal possession of
firearms shall be imposed provided that no other crime is committed.25 In other
words, where murder or homicide was committed, the penalty for illegal
possession of firearms is no longer imposable since it becomes merely a special
aggravating circumstance.26
It bears stressing, however, that the dismissal of the present case for illegal
possession of firearm should not be misinterpreted to mean that there can no
longer be any prosecution for the offense of illegal possession of firearms. In
general, all pending cases involving illegal possession of firearms should
continue to be prosecuted and tried if no other crimes expressly provided in R.
A. No. 8294 are involved (murder or homicide, under Section 1, and rebellion,
insurrection, sedition or attempted coup d etat, under Section 3). 27
Pursuant to Article 22 of the Revised Penal Code, where the new law is
favorable to the accused, it has to be applied retroactively. Thus, insofar as it
spares accused-appellant a separate conviction for illegal possession of firearms,
Republic Act No. 8294 has to be given retroactive application in Criminal Case
No. 13100-R.
On the matter of the aggravating circumstance of use of unlicensed firearm in
the commission of murder or homicide, the trial court erred in appreciating the
same to qualify to death the penalty for the murder committed by accused-
appellant. It should be noted that at the time accused-appellant perpetrated the
offense, the unlicensed character of a firearm used in taking the life of another
was not yet an aggravating circumstance in homicide or murder; to wit:
Neither is the second paragraph of Section 1 meant to punish homicide or
murder with death if either crime is committed with the use of an unlicensed
firearm, i.e., to consider such use merely as a qualifying circumstanceand not as
an offense. That could not have been the intention of the lawmaker because the
term penalty in the subject provision is obviously meant to be the penalty for
illegal possession of firearm and not the penalty for for homicide or murder. We
explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as
an aggravating circumstance in homicide or murder. Under an
information charging homicide or muder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the
penalty for the second offense of homicide or murder to
death (or reclusion perpetua under the 1987 Constitution). The
essential point is that the unlicensed character or condition of the
instrument used in destroying human life or committing some other
crime, is not included in the inventory of aggravating circumstances
set out in Article 14 of the Revised Penal Code.
A law may, of course, be enacted making the use of an unlicensed firearmas
a qualifying circumstance.28(Emphasis supplied)
Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of
unlicensed firearm as an aggravating circumstance in murder or homicide, the
penalty for the murder committed by accused-appellant on June 23, 1994 was
not death, as erroneously imposed by the trial court. There was yet no such
aggravating circumstance of use of unlicensed firearm to raise the penalty for
murder from reclusion perpetua to death, at the time of commission of the
crime.
The amendatory law making the use of an unlicensed firearm as an aggravating
circumstance in murder or homicide, cannot be applied here because the said
provision of R.A. No. 8294 is not favorable to accused-appellant, lest it becomes
an ex post factolaw.29
WHEREFORE, the decision in Criminal Case No. 13102-R is AFFIRMED
with the modification that accused-appellant Augusto Loreto Ringor, Jr. is
hereby sentenced to suffer the penalty of reclusion perpetua. It is understood
that the civil liabilities imposed below are UPHELD.
Criminal Case No. 13100-R instituted pursuant to Presidential Decree No. 1866 Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo,
is DISMISSED. No pronouncement as to costs. Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon Jr., JJ., concur.

SO ORDERED. Davide, Jr., C.J., (Chairman), and Panganiban, J., in the result.

Endnotes

1 15
Penned by Judge Ruben C. Ayson. Tsn., cross-examination of Augusto Loreto Ringor, May 4, 1995, p. 17.

2 16
Decision, Rollo, pp. 40 - 41. People vs. Unarce, supra, p. 764, citing: People vs. Morin, supra;
People vs. Camahalan, 241 SCRA 558 [1995]; People vs. Tanduyan, 236
3
Rollo, p. 13 SCRA 433 [1994]; People vs. Amaro, 235 SCRA 8 [1994]; People vs.
Gregorio, 255 SCRA 380 [1996]; People vs. Layam, 234 SCRA 424
4 [1994].
Rollo, p. 11.
17
5
Appellees Brief, Rollo, pp. 155 158. Tsn, cross examination of Dr. John Tinoyan, December 13, 1994, pp. 6,
10 11.
6
Ibid., Rollo, pp. 156-157. 18
Ibid, pp. 4 6.
7
Appellants Brief, Rollo, pp. 66 67. 19
Ibid, p. 10.
8
Ibid, pp. 67 72. 20
People vs. Unarce, supra, p. 764, citing: People vs. Ramirez, 203 SCRA
9
25 [1991]; People vs. Alapide 236 SCRA 555 [1994]; and People vs.
People vs. Unarce, 270 SCRA 756, pp. 762 763; citing: People vs. Morato 244 SCRA 361 [1993].
Macagaling, 237 SCRA 299 [1994]; People vs. Alapide, 236 SCRA 555
[1994]; People vs. Ocana, 229 SCRA 341 [1994]; Bitalac vs. CA, 241 21
Ibid., p. 765, citing: Rosales vs. Court of Appeals, 255 SCRA 123
SCRA 351 [1995].
[1996]; People vs. Bello, 237 SCRA 347 1994]; People vs. Muyano, 235
10
SCRA 184 [1994]; Art. 14, Revised Penal Code.
Ibid, citing: People vs. Gregorio, 255 SCRA 380 [1996]; People vs.
Aliviado, 247 SCRA 302 [1995]; People vs. Decena, 235 SCRA 67 [1994]; 22
Article 63 (2) of the Revised Penal Code.
People vs. Salazar, 221 SCRA 170 1993].
23
11
Ibid, citing: People vs. Gregorio, supra; People vs. Morin, 241 SCRA 292 SCRA 742.
709 [1995]; People vs. Flores, 237 SCRA 635 [1994]; People vs. Gutual,
24
254 SCRA 37 [1996]; People vs. Bernal, 254 SCRA 699 [1996]. G.R. No. 127663, March 11, 1999.

25
12
Tsn, p. 16; cross-examination of Augusto Loreto Ringor, May 4, 1995. Section 1 of R.A. No. 8294.

26
13
Tsn., p. 25; cross-examination of Fely Batanes, December 13, 1994. People vs. Molina, supra, at p. 782.

27
14
People vs. Pija, 245 SCRA 80, pp. 84-85; citing: People vs. Rostata, Jr., People vs. Valdez, supra.
218 SCRA 657.
28
People vs. Molina, supra, pp. 782-783; citing: People vs. Tac-an, 182
SCRA 601 and People vs.Quijada, 295 SCRA 191.
EN BANC
G.R. No. 100210 April 1, 1998
THE PEOPLE OF THE PHILIPPINES, Petitioner, vs. HON. OSCAR
B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148
and ANTONIO A. TUJAN, Respondents.
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court,
correct in ruling that Subversion is the "main offense" in a charge of Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion under
P.D. No. 1866, as amended, and that, therefore, the said charge should be
quashed in view of a previous charge of Subversion under R.A. No. 1700,
as amended by P.D. No. 885, against the same accused pending in another
court?
Stated differently, is the accused charged with the sameoffense in both
cases, which would justify the dismissal of the second charge on the ground
of double jeopardy?
This is the pith issue presented before us in this appeal
by certiorari interposed by the People under Rule 45 of the Revised Rules
of Court, seeking a review of the decision 1 of the Court of Appeals
(Sixteenth Division) dated May 27, 1991, in CA-G.R. SP No. 24273,
entitled "THE PEOPLE OF THE PHILIPPINES, Petitioner, versus HON.
29
People vs. Ronaldo Valdez, supra.
OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch
148 and ANTONIO A. TUJAN, Respondents."
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with
Subversion under Republic Act No. 1700 (the Anti-Subversion Law), as
amended, before the Regional Trial Court of Manila (Branch 45), National
Capital Region, docketed as Criminal Case No. 64079. 2 As a consequence
thereof, a warrant for his arrest was issued on July 29, 1983, 3 but it
remained unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was
arrested on the basis of the warrant of arrest in the subversion case. 4 When
arrested, an unlicensed .38 caliber special revolver and six (6) rounds of live
ammunition were found in his possession. 5
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal
Possession of Firearm and Ammunition in Furtherance of Subversion under
Presidential Decree No. 1866, as amended, before the Regional Trial Court
of Makati (Branch 148), docketed as Criminal Case No. 1789. The
Information reads:
That on or about the 5th day of June, 1990, in the Municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, being a member of a
communist party of the Philippines, and its front organization, did then and
there willfully, unlawfully and feloniously have in his possession, control
and custody, in furtherance of or incident to, or in connection with the crime
of subversion, a special edition ARMSCOR PHILS. caliber .38 special
revolver with Serial No. 1026387 and with six (6) live ammunitions,
without first securing the necessary license or permit thereof from
competent government authority. 6
The above Information recommended no bail for Antonio Tujan, which
recommendation was approved by the trial court in an Order dated June 19,
1990. 7 The same order also directed the continued detention of Antonio
Tujan at MIG 15 of the Intelligence Service of the Armed Forces of the
Philippines (ISAFP), Bago Bantay, Quezon City, while his case is pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a
motion 8 invoking his right to a preliminary investigation pursuant to
Section 7, Rule 112 of the Revised Rules of Court and praying that his
arraignment be held in abeyance until the preliminary investigation is
terminated.
However, on June 27, 1990, during the hearing of Antonio Tujan's motion
for preliminary investigation, his counsel withdrew the motion since he
would file a motion to quash the Information, for which reason counsel
requested a period of twenty (20) days to do so. This was granted by the
trial court on that same day. 9
On July 16, 1990, Antonio Tujan did file the motion to quash 10 the
Information in Criminal Case No. 1789 on the ground that he "has been
previously in jeopardy of being convicted of the offense charged" in
Criminal Case No. 64079 (for subversion) of the Regional Trial Court of
Manila (Branch 45). The said ground is based on Sections 3 (h) and 7, Rule
117 of the 1985 Rules on Criminal Procedure. In support of the motion,
Antonio Tujan contends that "common crimes such as illegal possession of
firearms and ammunition should actually be deemed absorbed in
subversion," 11citing the cases of Misolas vs. Panga, et al. (G.R. No. 83341,
January 30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No.
92163, June 5, 1990, 186 SCRA 217). Antonio Tujan then avers that "the
present case is the twin prosecution" of "the earlier subversion case" and,
therefore, he "is entitled to invoke the constitutional protection against
double jeopardy." 12
The petitioner opposed 13 the motion to quash, arguing that Antonio Tujan
does not stand in jeopardy of being convicted a second time because: (a) he
has not even been arraigned in the subversion case, and (b) the offense
charged against him in Criminal Case No. 64079 is for Subversion,
punishable under Republic Act No. 1700; while the present case is for
Illegal Possession of Firearm and Ammunition in Furtherance of
Subversion, punishable under a different law (Presidential Decree No.
1866). Moreover, petitioner contends that Antonio Tujan's reliance on the
Misolas and Enrile cases "is misplaced." 14 Tujan merely relies on the
dissenting opinions in the Misolas case. Also, the Enrile case which
involved a complex crime of rebellion with murder is inapplicable to the
instant case which is not a complex offense. Thus, the "absorption rule" as
held applicable in the Enrile ruling "has no room for application in the
present case because (illegal) possession of firearm and ammunition is not a
necessary means of committing the offense of subversion, nor is subversion
a necessary means of committing the crime of illegal possession of firearm
and ammunition." 15
The trial court, in an order dated October 12, 1990, granted the motion to
quash the Information in Criminal Case No. 1789, the dispositive portion of
the order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED,
but only in so far as the accused may be placed in jeopardy or in danger of
being convicted or acquitted of the crime of Subversion and as a
consequence the Information is hereby quashed and the case dismissed
without prejudice to the filing of Illegal Possession of Firearm.
SO ORDERED. 16
It is best to quote the disquisition of the respondent court in quashing the
information and dismissing the case:
xxx xxx xxx
In other words, the main offense the accused is being charged in this case is
also Subversion considering that the alleged Illegal Possession of the
Firearm and Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by
the Supreme Court, the fact that the accused has been previously charged of
Subversion before another court before the institution of this instant case is
just a continuing offense of his former charge or that his acts constituting
subversion is a continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the
prosecution that this case is very different from the other case and that
double jeopardy will attach in this particular case.
This court agrees with the position taken by the defense that double
jeopardy will attach to the accusation of subversion, punishable now under
Republic Act 1700, as Rule 117 of the Rules of Court particularly Section 1
thereof, provides:
Time to move to quash - At anytime before entering his plea, the accused
may move to quash the complaint or information.(la)
In other words, there is no necessity that the accused should be arraigned
first before he can move to quash the information. It is before he pleads
which the accused did in this case.
On the other submissions by the prosecution, that the possession of firearms
and ammunitions is not a necessary means of committing the offense of
subversion or vice versa, then if the court follows such argument, there
could be no offense of Illegal Possession of Firearm and Ammunition in
furtherance of Subversion, for even the prosecution admits also that in
subversion which is an offense involving propaganda, counter propaganda,
a battle of the hearts and mind of the people does not need the possession or
use of firearms and ammunitions.
The prosecution even admits and to quote:
The defense of double jeopardy. while unquestionably available to the
accused, had not been clearly shown to be invokable(sic) at this point in
time.
But the rule says otherwise as previously stated as provided for under
Section 1 of Rule 117 of the Rules of Court.
Thus, if ever the accused is caught in possession of a firearm and
ammunition which is separate and distinct from the crime of subversion and
is not a necessary ingredient thereof and the court believed so, the
prosecution will have to file another information as they may wish. The
court therefore has to grant the motion to quash on the aforestated grounds,
subject to Section 5 of Rule 117, considering that the only offense to which
the accused in this case may be placed in jeopardy is Subversion and not
Illegal Possession of Firearms and Ammunitions.
The prosecution may file any information as warranted within ten (10) days
from receipt of this order otherwise the court will order the release of the
accused, unless he is in custody for some other offense. 17 (Emphasis ours)
Petitioner's motion for reconsideration 18 was also denied in an order dated
December 28, 1990. 19
The petitioner elevated the case to the Court of Appeals through a petition
for certiorari, docketed as CA-G.R. SP No. 24273. However, the appellate
court found that the trial court did not commit any grave abuse of discretion
amounting to lack or excess of jurisdiction in quashing the questioned
Information. In dismissing the petition, the appellate court, in its decision
dated May 27, 1991, basically reiterated the aforequoted ruling of the trial
court.
Petitioner now comes to this Court, claiming that: (1) the decision of the
Court of Appeals is not in accord with the law and applicable jurisprudence;
and (2) it was deprived of due process to prosecute and prove its case
against private respondent Antonio Tujan in Criminal Case No. 1789.
We agree with the petitioner.
The Court of Appeals considered as duplicitous the Information for
violation of P.D. No. 1866 filed against private respondent Antonio Tujan.
It ruled:
The foregoing information (for Illegal Possession of Firearm and
Ammunition in Furtherance of Subversion) filed before the Makati court
shows that the main case is subversion considering that there is an
allegation that the alleged illegal possession of firearms was made "in
furtherance of or incident to, or in connection with the crime of subversion."
Also, the information alleged likewise that the accused is a member of a
communist party of the Philippines and its front organization. Basically, the
information refers to the crime of Subversion qualified by Illegal Possession
of Firearms. . . . 20
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is
charged in Criminal Case No. 1789 before the Regional Trial Court of
Makati (Branch 148), provides as follows:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to
be Used in the Manufacture of Firearms or Ammunition. - The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed upon any person who shall unlawfully manufacture, deal in,
acquire, dispose, or posses any firearms, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearms,
the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion, the
penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period to reclusion
perpetua shall be imposed upon the owner, president, manager, director or
other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the
firearms owned by such firm, company, corporation or entity to be used by
any person or persons found guilty of violating the provisions of the
preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority
therefor. (Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under
the first paragraph of Section 1, the mere possession of an unlicensed
firearm or ammunition is the crime itself which carries the penalty
of reclusion temporal in its maximum period to reclusion perpetua. The
third paragraph of the same Section makes the use of said firearm and
ammunition "in furtherance of, or incident to, or in connection with the
crimes of rebellion, insurrection or subversion" a circumstance
to increase the penalty to death. Thus, the allegation in the Information in
Criminal Case No. 1789 that the unlicensed firearm found in the possession
of Antonio Tujan, "a member of the communist party of the Philippines and
its front organization," was used "in furtherance of or incident to, or in
connection with the crime of subversion" does not charge him with the
separate and distinct crime of Subversion in the same Information, but
simply describes the mode or manner by which the violation of Section 1 of
P.D. No. 1866 was committed 21 so as to qualify the penalty to death.
There is, therefore, only one offense charged in the questioned information,
that is, the illegal possession of firearm and ammunition, qualified by its
being used in furtherance of subversion. 22 There is nothing in P.D. No.
1866, specifically Section 1 thereof, which decrees categorically or by
implication that the crimes of rebellion, insurrection or subversion are the
very acts that are being penalized. This is clear from the title of the law
itself which boldly indicates the specific acts penalized under it:
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION,
MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION, OF
FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS
USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR
EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN
VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES. (Emphasis
ours)
On the other hand, the previous subversion charge against Antonio Tujan in
Criminal Case No. 64079, before the Regional Trial Court of Manila
(Branch 45), is based on a different law, that is, Republic Act No. 1700, as
amended. Section 3 thereof penalizes any person who "knowingly, willfully
and by overt act affiliates with, becomes or remains a member of a
subversive association or organization . . ." Section 4 of said law further
penalizes "such member [of the Communist Party of the Philippines and/or
its successor or of any subversive association] (who) takes up arms against
the Government." Thus, in the present case, private respondent Antonio
Tujan could be charged either under P.D. No. 1866 or R.A. No. 1700, 23 or
both.
This leads us to the issue of whether or not private respondent Antonio
Tujan was placed in double jeopardy with the filing of the second
Information for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion.
We rule in the negative.
Article III of the Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for the
same act. (Emphasis ours)
Complementing the above constitutional provision, Rule 117 of the Revised
Rules of Court states:
Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused
has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or acquittal of the accused
or the dismissal of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
xxx xxx xxx
The right of an accused against double jeopardy is a matter which he may
raise in a motion to quash to defeat a subsequent prosecution for
the same offense. The pertinent provision of Rule 117 of the Revised Rules
of Court provides:
Sec. 3. Grounds. - The accused may move to quash the complaint or
information on any of the following grounds:
xxx xxx xxx
(h) That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the benefit
of an accused, the following requisites must have obtained in
the first criminal action: (a) a valid complaint or information; (b) a
competent court; (c) the defendant had pleaded to the charge; 24 and (d) the
defendant was acquitted, or convicted, or the case against him was
dismissed or otherwise terminated without his express consent. 25
Suffice it to say that in the present case, private respondent's motion to
quash filed in the trial court did not actually raise the issue of double
jeopardy simply because it had not arisen yet. It is noteworthy that the
private respondent has not even been arraigned in the first criminal action
for subversion. Besides, as earlier discussed, the two criminal charges
against private respondent are not of the same offense as required by
Section 21, Article III of the Constitution.
It is clear from the foregoing, that the assailed decision of the Court of
Appeals is not in accordance with the law and jurisprudence and thus should
be reversed.
While we hold that both the subversion charge under R.A. No. 1700, as
amended, and the one for illegal possession of firearm and ammunition in
furtherance of subversion under P.D. No. 1866, as amended, can co-exist,
the subsequentenactment of Republic Act No. 7636 on September 22,
1992, totally repealing R.A. No. 1700, as amended, has substantially
changed the complexion of the present case, inasmuch as the said repealing
law being favorable to the accused-private respondent, who is not a habitual
delinquent, should be given retroactive effect. 26
Although this legal effect of R.A. No. 7636 on private-respondent's case has
never been raised as an issue by the parties - obviously because the said law
came out only several months after the questioned decision of the Court of
Appeals was promulgated and while the present petition is pending with this
Court - we should nonetheless fulfill our duty as a court of justice by
applying the law to whomsoever is benefited by it regardless of whether or
not the accused or any party has sought the application of the beneficent
provisions of the repealing law. 27
That R.A. No. 7636 should apply retroactively to accused-private
respondent is beyond question. The repeal by said law of R.A. No. 1700, as
amended, was categorical, definite and absolute. There was no saving clause
in the repeal. The legislative intent of totally abrogating the old anti-
subversion law is clear. Thus, it would be illogical for the trial courts to try
and sentence the accused-private respondent for an offense that no longer
exists. 28
As early as 1935, we ruled in People vs. Tamayo: 29
There is no question that at common law and in America a much more
favorable attitude towards the accused exists relative to statutes that have
been repealed than has been adopted here. Our rule is more in conformity
with the Spanish doctrine, but even in Spain, where the offense ceases to be
criminal, prosecution cannot be had. (1 Pacheco Commentaries, 296)
(Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act
with was penalized by a prior law ceases to be criminal under the new law,
the previous offense is obliterated. 30 It is a recognized rule in this
jurisdiction that a total repeal deprives the courts of jurisdiction to try,
convict and sentence persons charged with violation of the old law prior to
the repeal. 31
With the enactment of R.A. No. 7636, the charge of subversion against the
accused-private respondent has no more legal basis and should be
dismissed.
As regards the other charge of illegal possession of firearm and
ammunition, qualified by subversion, this charge should be amended to
simple illegal possession of firearm and ammunition since, as earlier
discussed, subversion is no longer a crime.
Moreover, the offense of simple illegal possession of firearm and
ammunition is now bailable under Republic Act No. 8294 which was
enacted on June 6, 1997. R.A. No. 8294 has amended Presidential Decree
No. 1866, as amended, by eliminating the provision in said P.D. that if the
unlicensed firearm is used in furtherance of subversion, the penalty of death
shall he imposed. 32 Under the new law (R.A. No. 8294), the penalty
prescribed for simple illegal possession of firearm (.38 caliber) is now
reduced to prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000.00). 33 The reduced penalty of
imprisonment - which is four (4) years, two (2) months and one (1) day to
six (6) years - entitles the accused-private respondent to bail. Considering,
however, that the accused-private respondent has been detained since his
arrest on June 5, 1990 up to the present (as far as our record has shown), or
more than seven (7) years now, his immediate release is in order. This is so
because even if he were convicted for illegal possession of firearm and
ammunition, the length of his detention while his case is pending has
already exceeded the penalty prescribed by the new law.
WHEREFORE, the assailed decision of the Court of Appeals dated May 27,
1991, in CA-G.R. SP No. 24273, including the orders dated October 12,
1990 and December 28, 1990 of the Regional Trial Court of Makati (Branch
148), National Capital Region, in Criminal Case No. 1789, are hereby
REVERSED and SET ASIDE.
The subversion charge against accused-private respondent Antonio A. Tujan
in Criminal Case No. 64079 of the Regional Trial Court of Manila, Branch
45, is hereby DISMISSED.
The other Information for illegal possession of firearm and ammunition in
furtherance of subversion against the same accused in Criminal Case No.
1789 of the Regional Trial Court of Makati, Branch 148, is DEEMED
AMENDED to Simple Illegal Possession of Firearm and Ammunition. The
accused-appellant is hereby ordered RELEASED IMMEDIATELY from
detention for the reason stated above, unless he is being detained for any
other offense.
This decision is IMMEDIATELY EXECUTORY.
No pronouncement as to costs.
SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,

Vitug, Kapunan, Mendoza, Panganiban, Quisumbing and
Purisima, JJ., concur.