1. CRIMINAL LAW; TREASON; APPELLANT’S PARTICIPATION IN THE ARREST OF GUERRILLA SUSPECT AS GIVING AID AND COMFORT TO THE ENEMY; ACT UNDER COMPULSION BUT NOT SO IRRESISTIBLE CONSTITUTES ONLY A MITIGATING CIRCUMSTANCE. — There is no doubt that appellant, to give aid and comfort to the Japanese, took part in the arrest of the B sisters, for their guerrilla activities, but we do not believe that he deserves the penalty imposed upon him by the trial court. There is reason to believe, upon the testimony of the accused, that he must have acted under compulsion by the Japanese but not so irresistible to exempt him from all responsibility, but enough to mitigate it under paragraph 5 of article 12 and paragraph 1 of article 13 of the Revised Penal Code. The guilt of the accused is not so grave that when this Court voted for the first time whether to convict him or not, we were deadlocked in a tie vote, that we had to order a rehearing as provided by the rules.

Felix Alcover appealed from a decision of the People’s Court finding him guilty of treason and sentencing him to suffer reclusion perpetua and to pay a fine of P5,000 and the costs.

Appellant is accused of treason on three counts, one for acting as informer, undercover or spy of the Japanese Kempei-Tai, another for his participation in the arrest of Anita and Rosario Bacani, intelligence operatives of the guerrillas, and the third for his part in the arrest of Francing Bacalla, for the latter’s guerrilla activities.

At the hearing the accused admitted being a Filipino citizen by birth. (9). The substance of the testimonies of the witnesses for the prosecution is as follows:chanrob1es virtual 1aw library

Rosario Bacani, 17, single, beautician, Cebu City, testified that the accused was during the enemy occupation an undercover giving help to the Japanese. He happened to go to Calamba and he shot a guerrilla. On January 13, 1945, at 2 o’clock, Japanese and undercovers arrested the witness. Among those who arrested her were the accused, Maximo Bate, Jose de Castro, Maneng Hernandez, Alfonso Castro. She was hanged for about thirty minutes, she was told to stand on a bench, and tied on the back, and she was kept hanging on a piece of the wood attached to the ceiling of the house. The accused was carrying a revolver. (3- 4). She was tied by Maximo Bate and the Japanese. The accused was guarding her brothers and sisters. When she went down, she was tied with a rope and the accused was the one handling it. He was dragging her by it. Both of her hands were tied in front and she was taken by truck to Cebu City. Anita and Ricardo Bacani, her sister and brother, were also arrested. Yoshida, a Japanese, was living in Sanciangko Street. (5). At the time the witness was staying with Yoshida, the accused was giving a daily written report to Yoshida. He handed them to Tariyama who in turn gave them to Yoshida. The witness believes that they were given to Tariyama who gave them to the chief of the Kempei-Tai. (6). The reports were about guerrilla activities. The accused had been submitting them until the Americans came. The witness stayed with Yoshida for about a month. The witness was present when the accused submitted those reports to Yoshida, so it had been easy for them to arrest those who cooperated with the guerrillas. (7). On February 3, 1945, the witness was released by Yoshida. Between February 22 or 23, the accused, Jose de Castro and Maximo Bate took her from her house and the accused told her that she would be brought to the Normal School and killed. She was brought instead to the house of Yoshida in Sanciangko Street. When Yoshida came, he told her that she was so fortunate that she was not killed because of a grave accusation; that they intended to kill her that very day, and that they then asked her which she preferred, life or death. And she chose the former. Her mother was told to go to Yoshida’s house. Yoshida took the mother to a room where they had a conversation. After the conversation "my mother approached me; she told me that Yoshida told her that I would be left; without any hesitation my mother left me; and from that time I was staying in that house that I came to know the accused." The accused was telling the witness to tell the truth "that we were working in the guerrilla." The witness was really working with the intelligence department of the guerrillas. (8). The witness happened to know of the activities of the accused when she was in Sanciangko Street, where she stayed from February up to March 26, 1945. (9). The witness lived as the common-law wife of Yoshida. Her sister worked as telefonista with the Japanese because they have no means of living and she was connected with the guerrilla. (10). Her sister did not work voluntarily but because they had no means of livelihood and in order to help in getting information regarding the Japanese activities. There were about ten persons living with Yoshida in Sanciangko Street. They were Felix Alcover, Jose de Castro, Manuel Hernandez, Filomeno Nocon, Conrado Poo, and Marcos, a little boy. That is all. (11). The witness happened to be at Sanciangko because she was brought there by the accused. She happened to be a common-law wife of Yoshida as a victim of circumstances. She could go freely in the house but she could not go to P. Padilla Street without guard, and her guards were Felix Alcover, Jose de Castro, Bate and others. Regarding reports given by the accused to Yoshida "I could not assure what were inside the papers, but I have read before that about guerrilla activities." (12). The witness cannot name any guerrillero that was mentioned in any report. The witness does not remember how many Japanese were among those who arrested her. She was tied by a Japanese and Maximo Bate, and it was the latter who hanged her. (15). When Francisca Bacalla was arrested, she squealed about the witness and, because she did not know the witness’ place, she pointed to Ricardo Bacani, her brother, to guide the Japanese to the witness’ house. (16). Ricardo Bacani, witness’ brother, was with a group of Japanese who arrested the witness. (17). Francisca Bacalla had been killed. She was taken from the prison camp by a Japanese. (18). The witness was a guerrilla under the command of Lieutenant Benoya. She took notice of all the Japanese activities and movements, ammunition dumps and everything in general about the Japanese. (19). When she was hanged, she was injured in her right and left breasts and in her shoulder joint. (20).

Anita Bacani, 23, single, cashier, Cebu City, testified that at 3 o’clock, January 13, 1945, Japanese and undercovers including the accused went to their house and arrested her because of her connection with the guerrilla. The accused carried a revolver. (21). The witness was hanged and beaten and the Japanese were threatening her family, which was guarded by the accused and whose members were asked to squeal the truth about their guerrilla activities. The accused told her: "Anita, tell the truth, so you will not be killed." While the witness was being maltreated, the accused was guarding her father, mother and sister. (22). The witness was hanged and boxed. Her hands were tied at her back and she was hanged without touching the floor. The accused was convincing her father to tell the truth. He said to the witness that if she did not tell the truth, she would be killed. Afterwards, the witness was brought by the accused to the Kempei-Tai at the house of Dr. Cologado. (23). After her arrest, the witness saw the accused with the Japanese Kempei-Tai and undercovers. No one was permitted to go with the Japanese undercovers unless he was one of them. The witness saw the accused and the Kempei-Tai in Cebu City. As a result of the maltreatment, the witness had a shoulder blade broken and an arm dislocated. Before January 13, 1945, the witness was employed as telephone operator under the Japanese and later in the Commissioner’s office. She started to work as telephone operator since her father was arrested in January, 1943 or January, 1942. She worked with the Japanese because her intention was to get information for the guerrilla. She used to contact guerrilla men. Her salary as telephone operator was P32.60 and in the Commissioner’s office P80 monthly. (26). The witness reported to her official as undercover the accused Jose de Castro, Nocon, Pablo Labra and others. She was reporting to Lieutenant Benoya. (27). At the time the witness was arrested, her brother was in the group because he was arrested when Francisca Bacalla was arrested. Francisca was the one who pointed to her brother. Her brother, Ricardo, was tied up. The arrest took place at about 2 o’clock dawn. The witness had another brother, Jose who was killed. (28). Those arrested on January 13, 1945, were the witness, and her sister Rosario and brother Ricardo. Ricardo was arrested in Calamba, while the witness and her sister Rosario were arrested in Bulacao. (29).

Francisco Benoya, 27, married, photographer, Cebu City, testified that during the Japanese occupation he was operating somewhere in Badian, Pardo (32). He was an officer in the army as G-2, his duty being to observe movements of troops and military installations. He had as operatives in Cebu City Anita and Rosario Bacani and Francisca Bacalla. They used to submit reports sometimes written, sometimes verbal. (33). Exhibit A is a report he received from Candido Ibañez. Sketch Exhibit B is based on information given by Rosario Bacani. (34). The information regarding the location of the sentries and the number of Japanese in each garrison was furnished by Rosario (35). The witness gave to Anita and Rosario Bacani good money and Japanese money for operating expenses. (41).

Pascuala Bacalla, 34, single, merchant, Cebu City, testified that she had come to know the accused since she was a member of the guerrilla. (42). During the Japanese occupation, he was a member of the Philippine Constabulary under the Japanese. On January 12, 1945, the witness was engaged in the buy and sell business in Minglanilla. Upon arriving at the place near Labangon, she encountered the accused and other eight undercovers, including Pacho. Her cousin Francing Bacalla was apprehended by the accused, Pacho and their companions. Since then Francing Bacalla did not return. (43). After her arrest, Francing Bacalla was brought to the Kempei-Tai in Carlock Street. All those who arrested him, including the accused, were armed with revolvers. The witness does not know the motive for the arrest of Francing Bacalla who at that time was riding in a rig. (44). The witness was present in the arrest "because we were together. We came from buying things." Those who arrested her did not say any word. Only the witness and Francing Bacalla were there in the tartanilla. (45). The witness came to know the accused when he was yet a member of the guerrilla and he was not yet an undercover. She used to see him then when she was sleeping in the house of Francing Bacalla. The accused was an undercover because she had connection with Jaucian P. C. headquarters. (46). The witness saw him at the Japanese headquarters. (47).

Roque Cuasito, 23, married, Cebu City, testified that he had known the accused since the Japanese occupation. (47). He was a member of the P. C. and later on an undercover. He was with a gun in going with the Japanese patrol. The witness saw him as such twelve times and he was armed on those occasions. In one case the witness heard him telling that he was about to shoot a guerrilla lieutenant. (49). The witness was also a member of the P. C. during the Japanese occupation. He also carried a rifle during the bombing. He was in a company different from that of the accused. (49). The witness heard that the accused had resigned from the Philippine Constabulary. He saw the accused with revolver going with Japanese in the Kempei-Tai. (50).

Rosario Bacani, called again to testify, declared that she learned that Francing Bacalla was killed because H. Yoshida told her so without mentioning the date of the killing. (52). Conrado Boo, 22, single, merchant, Cebu City, testified that he had been with the accused during the Japanese occupation. The witness was a cook of H. Yoshida, chief of the Kempei-Tai. The accused was an undercover. He was carrying a revolver and the witness saw his identification card; his pistol had identification too. (54). Francing Bacalla was apprehended and brought to the house of Yoshida. Her apprehenders were the accused and Pacho. The witness saw Francing Bacalla as she was being brought to the house of Yoshida. Francing was investigated. She was undressed by the accused and Pacho. Her hands were tied behind her back and she was suspended on the air undressed. The accused and Pacho both carried arms, revolver, .38 caliber. The witness heard from the accused and from Rosario Bacani that Francing Bacalla was already dead. (55). According to the accused, Francing Bacalla was killed by the Kempei-Tai. The witness knows Rosario Bacani because she was brought by the accused and she became a common-law wife of Yoshida. Rosario was always crying and sad about her situation. She used to serve the Japanese and washed clothes. (56). The accused was given salary by Yoshida as undercover. He was living in the house of Yoshida. The witness had served as cook of Captain Jaucian of the P. C. and there he came to know that the accused was a member of the P. C. before becoming an undercover under Yoshida. (58). The witness served as Yoshida’s cook for about three months in 1944. He left about July or August. (59). The accused used to receive orders from Yoshida and go on patrol with him. (60).

The witness for the defense testified in substance as follows: Felix Ernane, 22, married, laborer, Cebu City, testified that on January 13, 1945, in Labangon where he was living, a lady was apprehended in the market place. The accused was not among those who were present on the occasion. (63). During the Japanese occupation the witness saw the accused carrying a revolver because he was a member of the P. C. (64). He was his friend before the war. (65).

Felix Alcover, 21, married, the accused, testified that he was a member of the Philippine Constabulary but not a Japanese spy. At the outbreak of the war he was working on the steamship Legaspi. On December 8, 1941, he volunteered for enlistment in the army. He was inducted as a soldier and stationed in Mandaue. (67). His commander was Lieutenant Cadileña. When the Japanese landed in Cebu, they retreated to the mountains. On June 28, 1942, he came down to look for his parents, whom he met in Pacola. On June 5 or 6, the witness was arrested by the Japanese. He was brought to the Snead Dormitory where he was investigated whether he was a member of the USAFFE and where his arms were. (68). He was tied and put inside a cell, where a companion, Margarito Campos, untied him. Fifteen days later, they were taken by Major Cruz. The witness was brought to the P. C. headquarters. Given the choice of enlisting in the P. C. or being arrested and killed by the Japanese, the witness offered to be enlisted and stayed in Major Cruz’ office where he worked until October, when he escaped and went to the mountains and reported to the command post of Lieutenant Abella. (69). The station was in Bocawis, in the mountains of Carcar. In September, the witness was sent to San Fernando where Captain Navarro made him a member of the headquarters company. In April or May, 1943, the Japanese made a mopping-up operation and, upon orders to disband, the witness went to Clarin, Bohol, where he remained until June, 1943. (70). Then he returned to Cebu to report to Lieutenant Abella with whom he remained until he was arrested for the second time by Marcha and Watanabe at Calamba. Watanabe investigated him for the whereabouts of Captain Navarro and Lieutenant Basillote. The witness answered that he did not know because he was in Bohol. After the investigation, Watanabe issued a pass for him and told him to enlist in the Philippine Constabulary so that he would not be taken to the M. P. The witness then escaped and went to the P. C. (command post) of Lieutenant Abella. (71). Abella investigated him why he was arrested. While in Cabacolan, Lieutenant Abella ordered him to put some dynamite in the house of Major Laput and the academy. He put the dynamite in a buri bag and proceeded to the city. Upon reaching the residence of Major Laput, he found it was surrounded by soldiers and P. C’s. Because he could not place the dynamite, he went to Calamba and then returned to Cabacolan to report to Lieutenant Abella who said "maybe you are a spy. Why did you not put the dynamite in the residence of Major Laput," and told him that if he could not put the dynamite he would better not come back to the C.P. (72). The witness returned to the city but did not bring with him the dynamite. He proceeded to Padilla Street and looked for his friends. He saw Anita Bacani, who was his friend then employed as a telephone operator by the Japanese, and told her to be careful because the majority of employees under the Japanese were being arrested by the guerrillas. While living in Calamba, the witness was apprehended by some Filipinos. Dictong and others worked under the M. P. He was brought to the Normal School building at nighttime and put in prison where he saw his friends in the mountains such as Johnny Laurel and Pedro Labra. They were prisoners. (73). In December, the witness, not being released, was simply turned over by the Japanese to the command of Major Laput, who investigated him about his escape to the mountains. The witness answered that he went to the mountains because his parents were there. Major Laput told him to stay in the headquarters because he was still weak. The witness was put in the cell as a prisoner and was asked whether he preferred to enlist in the P. C. or go back to the Normal School building. (74). He said that he would enlist in the P. C. His first assignment was to clean Major Laput’s table. When he got well, he was assigned to be a guard at the headquarters and sometimes as a traffic officer. About the month of October, 1944, he met Rosario Bacani on the street and asked her, "who is your husband now?" She answered, "A Japanese." "Oh, a Japanese," the accused said. "Well, your sister Anita is wanted by the guerrillas and you are also going to be wanted by the guerrillas because your husband is a Japanese." (75). In December, 1944, the witness was fired at in the intersection of Sanciangko and Leon Kilat Streets. He was wounded. He did not know who fired at him. He was then under the command of Lieutenant Flor of the Philippine Constabulary. He was brought to the Japanese hospital. (76). There he stayed about three months. First he was treated by a Filipino, then by Japanese doctors. It is not true that on January 13, 1945, he went to the house of Anita and Rosario Bacani to arrest them, or that he went to Labangon accompanied by Japanese to arrest Francing Bacalla. Francing Bacalla was apprehended by Vicente Cobarrubias and Manrique. (77). The witness came to know Rosario Bacani because she was his classmate before the war. He came to know Anita when he was under the command of Lieutenant Abella. He did not know whether he was under the Japanese or under a puppet government. He knew that his high command were Filipinos. (78). When they were classmates, the witness was in good terms with Rosario Bacani. He did not have any trouble with her. (80-81).

After a careful analysis of the evidence on record, we have come to the conclusion that no overt act of treason was committed by appellant, under the two-witness rule, except his active participation in the arrest on January 13, 1945, of the two sisters Anita and Rosario Bacani, intelligence operatives of the guerrillas, who were maltreated and then confined for some time. According to Rosario Bacani, the accused was carrying a revolver. After her maltreatment, her hands were tied and it was the accused who dragged her by the rope to be taken to the truck that brought them to Cebu city. According to Anita Bacani, the accused took part in her arrest on January 13, 1945. He was carrying a revolver, and even told her to tell the truth so that she would not be killed, and at the time that she was being maltreated, the accused was guarding her father, mother and sister.

There is no doubt that appellant, to give aid and comfort to the Japanese, took part in the arrest of the Bacani sisters, for their guerrilla activities, but we do not believe that he deserves the penalty imposed upon him by the trial court. There is reason to believe, upon the testimony of the accused, that he must have acted under compulsion by the Japanese but not so irresistible to exempt him from all responsibility, but enough to mitigate it under paragraph 5 of article 12 and paragraph 1 of article 13 of the Revised Penal Code. The guilt of the accused is not so grave that when this Court voted for the first time whether to convict him or not, we were deadlocked in a tie vote, that we had to order a rehearing as provided by the rules.

We believe that, for the purposes of justice, it would be enough to impose upon the accused 12 years and 1 day of reclusion temporal and to order him to pay a fine of P2,000 with costs.

Thus modified, the appealed decision is affirmed.

Moran, C.J., Ozaeta, Tuason and Montemayor, JJ., concur.



PABLO, M., concurrente:chanrob1es virtual 1aw library

Las pruebas obrantes en autos demuestran claramente que el acusado habia tomado parte en el arresto de las hermanas Rosario y Anita Bacani porque prestaban servicio a las guerrillas; tomo parte no solamente en su arresto sino tambien en su maltrato. Rosario Bacani habia sido colgada por mas de 30 minutos como si fuese una criminal. Cuando ella fue descolgada, el acusado fue el que, con el cordel en mano, la condujo a un truck para ser transportada a la Ciudad de Cebu. Anita Bacani, con las manos atadas en la espalda, habia sido tambien colgada por el acusado y sus compañeros. El acusado, para congraciarse tal vez con los oficiales japoneses, convencia no solamente a ella sino tambien a sus padres para que dijeran que ellos prestaron servicio a las guerrillas. Por los maltratos, Anita ha tenido fractura en la escapula y un brazo dislocado.

Ya hemos dicho mas de una vez que la guerrilla es una parte indispensable en toda guerra de resistencia, especialmente cuando el ejercito queda desorganizado por la invasion. Entonces es cuando la guerra de guerrillas es necesaria. Durante la ocupacion, la ayuda de la poblacion civil a las guerrillas era necesaria. Y esa ayuda no se podia efectuar sino mediante intermediarios. Este papel desempeñaban las hermanas Bacani.

Para aislar a las guerrillas de la poblacion civil — que les daba municiones de boca y guerra — habia necesidad de suprimir a los intermediarios. Por eso los japoneses hicieron implacable persecucion a los que ayudaban a las guerrillas. Emplearon la tortura en todas sus formas nunca imaginadas para sembrar el terror en todas partes. Y el acusado presto sus servicios en esta campaña no por la fuerza sino con gusto. Si las dos hermanas hubieran muerto como resultado de las torturas, no hay duda alguna, de que impondriamos al acusado la pena correspondiente al delito de traicion en toda su rigidez. Porque Rosario no murio sino que fue convertida, en mala hora, en instrumento para saciar la sed sexual de Yozida,