Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1548 March 29, 1949
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SEVERO BASCON (alias KID MORO), defendant-appellant.
Jesus Z. Valenzuela for appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Antonio A. Torres for appellee.
MONTEMAYOR, J.:
Severo Bascon alias "Kid Moro" is appealing from a decision of the People's Court finding him guilty of treason and sentencing him to life imprisonment, to pay a fine of P1,000, and to pay the costs.
Out of the three courts included in the information, evidence was submitted to support only one, namely, Count No. 1 which we reproduce below for purposes of reference:
1. That during the Japanese occupation in the City of Cebu, Cebu, Philippines and within the jurisdiction of this court the accused herein with intent to give aid and comfort to the enemy above-mentioned did then and there, wilfully, illegally, feloniously and treasonably act as a spy and/or undercover agent for the Japanese Military Police known as Kempei Tai and as such, did arrest apprehend and identify guerrillas and other person engaged in the resistance movement for the Kempei Tai torturing and maltreating person thus arrested by him and did furnish valuable military information regarding guerrillas and the USAFFE to the Japanese Imperial Forces;
By his own admission the appellant Severino Bascon alias Kid Moro is a Filipino citizen.
From a careful study of the evidence on record we find the following facts to have been duty established:
On May 3, 1943, while Inocencia Mabini and Cristobal Cortes a cousin of her father were walking along T. Padilla Street Cebu City they met a party of two Japanese soldiers and three Filipinos among the latter being the latter being the appellant who was at that time armed with a revolver and one named Turang who forthwith pointed to Cristobal as a guerrilla soldier. As a matter of facts at the time Cristobal was a sergeant in the guerrilla forces in the Province of Cebu and he had gone to the city upon instruction of his superior officers to procure foodstuffs. Bascon immediately arrested Cristobal and he and Inocencia were taken to Tisa. in Mabolo where they were questioned and searched. The party or group of which the appellant was a member wanted information about the guerrilla activities and also wanted to get a revolver which they were informed was kept by Cristobal. The two Japanese and the Three Filipinos then took Inocencia and Cristobal to Inocencia's house in General Loriga Street, Cebu City where in order to obtain the information needed Cristobal was severely was maltreated by the group including Bascon. Cristobal was punched beaten and strangled until he finally revealed that he had given his revolver to Inocencia to hide for him. In ransacking the house Bascon found the revolver in the kitchen under the stove where Inocencia had hidden it. These facts were testified to by Inocencia and were corroborated by her younger sister Cristina Mabini who was in the house when her sister and Cristobal arrived accompanied by the group. Cristina further told the court that during the torture of Cristobal the appellant was laughing and at one time it was he who inserted bullets between the fingers of Cristobal, — a Form of torture of common knowledge sometimes resorted to by inserting bullets between the finger and later squeezing the hand to cause intense pain. Afterwards Inocencia and Cristobal were taken to the Military Police headquarters in the City where they were kept for forty-seven (47) days. The evidence further show that after his release, Cristobal was later killed by the Japanese in Binalid and so was unable to testify during the trial.
The evidence further discloses that about August 4, 1944, a group of five Japanese and six Filipinos among the latter being the appellant Bascon and Pat. Romales went to the house of Gerardo Ouano located near the Romales went to the house of Gerardo Ouano located near the seashore in barrio Opao, Mandaue Cebu. At the time Bascon was armed with a revolved. The group was looking for firearms and guerrilla soldiers. The whole house was ransacked by Pat. Romales and Kid Moro and even a locked cabinet was opened and searched after the key to it had been taken from Jovita Ouano Gerardo's daughter. The men of the household special Gerardo and his servant Gonzalo Dacuya were maltreated by Beating them with the butt of a revolver and as to Dacuya the group even inserted the barrel of the revolver in his mouth apparently in an endeavor to frighten him. As a result of the search only a toy gun was found. The group arrived at the house about 10 o'clock in the morning and left only about 2 o'clock in the afternoon. When they left they took with them Gerardo his son Alfredo Ouano and Gonzalo Dacuya. To these facts Gonzalo Dacuya a servant and Lazaro Jerosa a laborer of Gerardo employed by him in hiss salt beds, testified. Dacuya further told the court that he and his master Gerardo and Alfredo were taken to the San Carlos Building City of Cebu and there kept for two and a half days, During said period Gerardo and Alfredo remained tied while he (Dacuya) was suspended in mid air and otherwise tortured so much that after his release he was unable to devote himself to work for period of four months and that even on the day of the trial which took place more than two year after his torture he still felt pains in his back. Dacuya also told court that Gerardo was already dead and so was unable testify during the trial.
There is no doubt in the mind of the Court as to the guilt of the appellants of the crime of treason. By his acts and conduct duty proven during the trial he a Filipino owing allegiance to the United State a and to the Government of the Philippines Islands adhered to and aided the Government of Japan represented by its invading and occupation forces in the Province of Cebu by accompanying and helping them in confiscating firearms and obtaining information about the whereabouts strength and activities of the guerrilla forces by freely using force intimidation and torture.
The appellant was a boxer and before the war had fought the ring under the name "Kid Moro." So he was well-known in the City of Cebu. He was married to a Japanese woman who according to the evidence and by the very admission of the appellants. Was employed by the Japanese as an interpreter. This facts of course does not and cannot affect the innocence or guilt of Bascon. Neither does it influence this Court in passing upon the merit of the appeal although it may perhaps serve as an indication or reason why the appellant had such sympathy for the Japanese to the extent of going against his own people.
The appellant claims that after liberation he was investigated by the CIC (Counter Intelligence Corps of the United State liberation Forces) and was cleared by it and given clearance paper. However he was unable to produce such alleged clearance papers in support of his claim saying that he had lost them. He further told the court that notwithstanding the clearance given him by the CIC, the guerrillas of Cebu were after him so much so that for his own safety he preferred to stay and inn facts stayed in prison and under custody. If this is true it is indicative of the hostile feeling in the community against the appellants for being an all-out pro Japanese arming himself with a revolver and accompanying and helping the Japanese soldier in their frequent raid and searches torturing Filipinos suspected of concealing firearms or possessing information about the guerrillas or actually being connected with them.
In conclusion we find that guilt of the appellant has been established beyond reasonable doubt. The decision being in accordance with law and supported by evidence the same is hereby affirmed with cost against the appellant. So ordered.
Moran, C.J., Paras, Feria, Pablo, Bengzon and Tuazon, JJ., concur.
Separate Opinions
PERFECTO, J., dissenting:
Appellant is entitled to acquittal upon two grounds namely:
1. Because not a single overt acts has been proved under the two-witness rule of article 114 of the Revised Penal Code. .
2. Because not one of he two overt acts attempted to be proved by the prosecution is alleged in the information.
I
The first overt act sought to be proved by the prosecution is the appellants alleged participation in the arrest of Cristobal Cortes and Inocencia Mabini at about 3 o'clock in the afternoon of May 3, 1943.
The sister Inocencia Mabini and Cristina Mabini are the only witnesses called to testify on the arrest.
Inocencia testified that the arrest took place at P. Padilla St., Cebu City. (2, 3 and 8).
Question: Now who were present during that arrest? Were there any person present during that arrest?
Answer: There were plenty of people because it was in P. Padilla, but I did not know them. (7).
Cristina agreed that the apprehension took place at P. Padilla St. (2 and 5) adding that place at about 3 o'clock in the afternoon of May 3, 1943. (7). But at the time she was in her own words in my house at Gen. Loriga St." (5,6). But during the whole day and night she remained in her house at said street.
Question: On May 3, 1943, where were you?
Answer: In my house.
Question: What do you mean? Do you mean to say that you stayed in your house from morning until night you did not go somewhere?
Answer: Yes sir, (6).
It is evident therefore that as to the arrest at P. Padilla St., there is on record only the testimony of Inocencia Mabini.
Moreover according to Inocencia the one who was arrested with her was Cortes but according to Cristina the one arrested was Ortiz.(3).
II
The second overt act attributed to the accused is his alleged participation in the arrest at 2 o'clock in the afternoon of Gerardo Ouano, Alfredo Ouano and Gonzalo Dacuya.
Two witnesses were called to testify on the alleged arrest: Gonzalo Dacuya and Lazaro Jerosa. Putting aside the discrepancies between the two witnesses we will deal only with the important detail as to the date of the arrest.
Dacuya said that the arrest took place in his house in Mandawe "in August 1944." (1) He did not mention the date of the arrest.
Jerosa testified that the arrest took place in the "first week of August, 1944, (11) on August 4, 1944." (12).
From the foregoing it appears that only a witness testified as to the arrest on August 4, 1944. No other witness testified as to the arrest on said date. The testimony of Dacuya that the arrest took place in August 1944, does not satisfy the two-witness rule.
When Dacuya mentioned August, he, in fact mentioned thirty-one days, the number of days of days of said month. The possibility that he could refer to August 4 is against thirty other possibilities from August 1 to 31. This conflict of possibilities in view of the legal presumption of innocence has to be resolved in favor of appellant who in addition, is overwhelmingly favored by a ratio of 30 to 1.
III
The fact that not one of said overt acts has been proved under the two-witness rule can be emphasized by the circumstances that not one of the above two overt acts has been and is alleged in the information.
This omission in the information shows that at the time the same was filed the prosecution did not have the least idea of the two arrests. Otherwise it would have not failed to mentioned them specifically as did in count 2 of the information where it is stated that appellants apprehended and shot to death a guerrilla soldier named Pedro Maglasan.
However not a single bit of evidence has been presented or offered to prove the alleged arrest and killing of Pedro Maglasan. No explanation has been given why no such evidence has been presented. No. explanation has been given why in a move of surprise the prosecution instead offered evidence of the two arrests above discussed.
Appellants cannot bee convicted legally of said two arrests, upon which he has not been duty informed by proper allegations in the information. Appellants was entitled as a matter of constitution right (Art III sec. 1-17 of the Constitution) to be informed of the nature of the specific crime impute to him. This constitutional right has been denied to him.
A trial is not a game of chance. It is not a bout of fencing where opponent are entitled to all ruses, deception and surprises. It is not heartless war in which belligerents may resort to treachery like the treacherous Peals Harbor attack. Because the purpose of a court trial is to administer justice it has to be fair and it has not to be decided on the cunning of litigants and lawyer who thrust their foils against unguarded opponents but on the merit of a controversy in which all the cards have to be laid on the table honestly and even in a true Christian spirit.
CONCLUSION
All the foregoing show that the only alternative for this Court on this case is to reverse the appealed decision to acquit appellant and to order his immediate release from imprisonment.
BRIONES, M., disidente:
Creo que el apelante debe ser absuelto por no haberse probado la acusacion contra el fuera de toda duda razonnnable.
Se formulation los cargos contra el acusado en una epoca en que los prejuuicios sobre la colaboracion con los japoneses eran muy pronunciados y los guerrilleros unos genuinos y otros falsos veiam un traidor en cada vecino de conducta algun tanto sospechosaa durnte la ocupacion. En el caso particular del acusado y apelante estos prejuicios se habran acentuado por estar el mismo casado con una mujer nacida en Hawaii de padres japoneses si bien ciudadana americana segun alegacion no impugnada. En algunas ocasiones esta mujer fue utilizada por los militares japoneses como interprete en ausencia del que regularmente desempenaba este oficio.
Es harto significativo el hecho de que habiendose for mulado en la querella tre cargos contra el acusado dos se sobreseyeron por no haberse presentado sobre los mismos ninguna prueba. Without any evidence on record t prove the charges under count Nos. 2 and 3 . . .", dice el Tribunal del Pueblo ensu sentencia. żNo prueba esto por lo menos la ligereza con que se redacto y presento la querrella?
Otra circunstancia que milita en favor del acusado y le hace acreedor a los beneficios de una duda razonable es el haber sido investigador inmediatamente despues de la liberacion por agentes de la CIC, entre ellos un teniente americano llamado Greenwall, saliendo exonerado de dicha investigacion. Sin embargo, por consejo del mismo Greenwall el acusado prefirio continuar detenido para su propia seguridad personal, pues los guerrilleros le miranban mal y temia que la hiciesen daño. Entre la imparcialidad de los agentes de la CIC y el apsionamiento de los guerrilleros opto por lo primero.
Es verdad que el acusado no pudo presentar en la vista los papeles que accreditaban su acreditaban su exoneracio pero explica esta omision diciebto que los habia perdido en uno de sus traslados. De todas maneeeras on hay en autos ninguna prueba tendente a refutar el hecho de la referida exoneracion.
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