EN BANC

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

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

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

J. Antonio Araneta for appellant.

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

SYLLABUS

1. CRIMINAL LAW; TREASON; "MAKAPILI" NOT PART OF JAPANESE

ARMY. — The Makapili, although organized to render military aid to the
Japanese Army in the Philippines during the late was as not a part of said
army. It was an organization of Filipino traitors, pure and simple.
2. ID; ID.; DEFENSE OF STATE, CONSTITUTIONAL DUTY OF CITIZEN;
CITIZENSHIP CANNOT BE CAST OFF IN TIME OF WAR. — The constitutional
duty of the citizen to defend the State cannot be cast off when his country is
at war, by the simple expedient of subscribing to an oath of allegiance to
support the constitution or laws of a foreign country, and an enemy country
at that, or by accepting a commission in the military, naval or air service of
such country, or by deserting from the Philippine Army, Navy, or Air Corps.
3. ID.; ID.; ID.; ID.; CASE AT BAR. — It would shock the conscience
of any enlightened citizenry to say that the appellant, by the very fact of
committing the treasonous acts charged against him, the doing of which
under the circumstances of record he does not deny, divested himself of his
Philippine citizenship and thereby placed himself beyond the arm of the
treason law. For if this were no, his very crime would be the shield that
would protect him from punishment.
4. ID.; ID.; AGGRAVATING CIRCUMSTANCES; BAND INCLUDES AID
OF ARMED MEN. — In appreciating the existence of a band the . employment
of more than three armed men is automatically included, there being only
the aggravating circumstance of band to be considered.
5. ID.; ID.; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO SUPERIOR
ORDERS DOES NOT INCLUDE ORDERS FROM A FOREIGN SOVEREIGN. —
Paragraphs 5 and 6 of article 11 of the Revised Pen Code cannot be
construed as sanctioning as legal acts done in compliance with duties to or
orders from a foreign sovereign any more than obedience to an illegal order.

DECISION

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 HILADO, J : p

Appellant Pedro Manayao and Filomeno Flores an Raymundo Flores

were charged with the high crime o treason with multiple murder in the
People's Court. The Floreses not having been apprehended, only Manayao
was tried. Convicted of the offense charged against him wit the aggravating
circumstances of (1) the aid of arm men and (2) the employment or presence
of a band i the commission of the crime, he was sentenced to death to pay a
fine of P20,000, an indemnity of P2,000 to the heirs of each of the persons
named in the third paragraph of the decision, and the costs. He has
appealed from that decision to this Court.
On or about the 27th of January, 1944, the guerillas raided the
Japanese in sitio Pulong Tindahan, municipality of Angat, Province of
Bulacan. In reprisal, Japanese soldiers and a number of Filipinos affiliated
with the Makapili, among them the instant appellant, conceived the
diabolical idea of killing the residents of barrio Banaban the same
municipality (Exhibits A, C, and C-1). Pursuant to this plan, said Japanese
soldiers and their Filipino companions, armed with rifles and bayonets,
gathered residents of Banaban behind the barrio chapel on January 29,
1945. Numbering about sixty or seventy, the residents thus assembled
included men, women and children — mostly women (Exhibits A, C, and C-1;
pp. 3-16, 29, 30, 65, 102, t. s. n.).
The children were placed in a separate group from the men and women
— the prosecution star witnesses, Maria Paulino and Clarita Perez, were
among the children (pp. , 40, t. s. n.). Presently, the Japanese and their
Filipino comrades set the surrounding houses on fire (pp. 14, 48, 70, 71, 103,
t. s. n.), and proceeded to butcher all the persons assembled, excepting the
small children, thus killing, among others, those known by the following
names: Patricia, Dodi, Banda, Tana, Uyang, Mina, Marta, Sana, Eufemia,
Doroteo, Andres, Perly, Tisiang, Urado, Pisan, Dorang, Felisa, and Eulalia (pp.
8, 10, 13, 14, 31, 32, 47, 48, 61, 62, 63, t. s. n.).
Appellant alone killed about six women, two of whom were Patricia and
Dodi whom he bayoneted to death in the presence of their daughters, Maria
Paulino and Clarita Perez, respectively (pp. 8, 10, 13, 31, 32, 35, 47, 48, t. s.
n.). Patricia and Dodi pleaded with appellant for mercy, he being their
relative, but he gave the callous answer that no mercy would be given them
because they were wives of guerrillas (pp. 10, 42, 43, 49, t. s. n.).
Appellant would also have killed the small children including Clarita
Perez and Maria Paulino if he had been allowed to have his way. For when all
but the small ones had been butchered, he proposed to kill them too, but the
Japanese soldiers interceded, saying that the children knew nothing of the
matter (pp. 15, 49, 51, 66, 67, t. s. n.). Appellant insisted in his proposal,
arguing that the children would be wives of guerrillas later when they grew
up, but the Japanese decided to spare them (p. 22, t. s. n.).
The foregoing facts have been clearly established by the testimony of
eye-witnesses — Clarita Paulino, Maria Perez, and Policarpio Tigas — to the
ruthless massacre of Banaban. There is a complete absence of evidence
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 tending to show motive on the part of these witnesses for falsely testifying
against appellant — such a motive is not even insinuated by the defendant.
Indeed, appellant's counsel frankly states (p. 3, brief) that he "does not
dispute the findings of fact of the People's Court." Speaking of the testimony
of Clarita and Maria, both aged ten years, the People's Court, who heard,
observed and saw them testify, had the following to say:
"The testimony of the last two in particular is entitled to very
great weight. They are simple barrio girls, only ten years old, whose
minds have not yet been tainted by feelings of hatred or revenge or by
any desire to be spectacular or to exaggerate. They were straight-
forward and frank in their testimony and did not show any intention to
appeal to the sentiments of the court. They could not have been
mistaken as to the presence and identity of the accused for they know
him so well that they referred to him by his pet name of 'Indong Pintor'
or Pedro, the painter. They could not have erred in the narration of the
salient phases of the tragic events of January 29, 1945, in Banaban, for
they were forced eye-witnesses to and were involved in the whole
tragedy, the burning of the houses and the massacre committed by the
accused and his Japanese masters took place in broad daylight and
were not consummated in a fleeting moment but during a time
sufficient for even girls of tender age to retain a trustworthy mental
picture of the unusual event they could not help but witness."
Not only this, but the testimony of Clarita Perez and Maria Paulino is so
clear, positive and convincing that it would be sufficient for conviction
without any further corroboration. Yet, there is ample corroborative proof.
Thus, Tomas M. Pablo declared that he had seen the corpses of the
massacred residents of Banaban shortly after the happening of the heinous
crime (p. 136, t. s. n.). And appellant himself admitted his participation in the
massacre in two sworn statements — one made on August 28, 1945, before
Lt. Jesus Cacahit, Detachment Commander of the Angat 23d MP Command
(Exhibit A; pp. 75-77, t. s. n.) and another made on September 5, 1945
before Feliciano F. Torres, Assistant Provincial Fiscal of Bulacan (Exhibits C,
C-1; pp. 150-159, t. s. n.).
In No. 1 of his assignment of errors, appellant's counsel contends that
appellant was a member of the Armed Forces of Japan, was subject to
military law, and not subject to the jurisdiction of the People's Court; and in
No. 2 he advances the theory that appellant had lost his Philippine
citizenship and was therefore not amenable to the Philippine law of treason.
We cannot uphold either contention. We are of the considered opinion that
the Makapili, although organized to render military aid to the Japanese Army
in the Philippines during the late war, was not a part of said army. It was an
organization of Filipino traitors, pure and simple. As to loss of Philippine
citizenship by appellant, counsel's theory is absolutely untenable. He invokes
in its support paragraphs 3, 4, and 6 of section 1 of Commonwealth Act No.
63, providing:
" . . . A Filipino citizen may lose his citizenship in any of the
following ways and/or events:
xxx xxx xxx

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 "(3) By subscribing to an oath of allegiance to support the
constitution or laws of a foreign country upon attaining twenty-one
years of age or more;
"(4) By accepting commission in the military, naval or air
service of a foreign country;
xxx xxx xxx
"(6) By having been declared, by competent authority, a
deserter of the Philippine Army, Navy, or Air Corps in time of war,
unless subsequently a plenary pardon or amnesty has been granted."
There is no evidence that appellant has subscribed to an oath of
allegiance to support the constitution or laws of Japan. His counsel cites
(Brief, 4) the fact that in Exhibit A "he subscribed an oath before he was
admitted into the Makapili association, 'the aim of which was to help Japan in
its fight against the Americans and her allies.' " And counsel contends from
this that the oath was in fact one of allegiance to support the constitution
and laws of Japan. We cannot uphold such a far-fetched deduction. The
members of the Makapili could have sworn to help Japan in the war without
necessarily swearing to support her constitution and laws. The famed "Flying
Tiger" who so bravely and resolutely aided China in her war with Japan
certainly did not need to swear to support the Chinese constitution and laws,
even if they had to subscribe to an oath, upon entering the organization, to
help China fight Japan. During the first World War the "National Volunteers"
were organized in the Philippines, pledged to go to Europe and fight on the
side of the Allies, particularly of the United States. In order to carry out that
mission — although the war ended before this could be done they surely did
not have to take an oath to support the constitution or laws of the United
States or any of its allies. We do not multiply these examples, for they
illustrate a proposition which seems self-evident.
Neither is there any showing of the acceptance by appellant of a
commission "in the military, naval, or air service" of Japan.
Much less is there a scintilla of evidence that appellant had ever been
declared a deserter in the Philippine Army, Navy or Air Corps — nor even
that he was a member of said Army, Navy, or Air Corps.
Further, appellant's contention is repugnant to the most fundamental
and elementary principles governing the duties of a citizen toward his
country under our Constitution. Article II, section 2, of said Constitution
ordains:
"SEC. 2. T h e defense of the State is a prime duty of
government, in the fulfillment of this duty all citizens may be required
by to render personal, military or civil service." (Emphasis supplied.)
This constitutional provision covers both time of peace and time of war,
but it is brought more immediately and peremptorily into play when the
country is involved in war. During such a period of stress, under a
constitution enshrining such tenets, the citizen cannot be considered free to
cast off his loyalty and obligations toward the Fatherland. And it cannot be
supposed, without reflecting on the patriotism and intelligence of the
Legislature that in promulgating Commonwealth Act No. 63, under the aegis
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 of our Constitution, it intended (but did not declare) that the duties of the
citizen solemnly proclaimed in the above-quoted constitutional precept could
be effectively cast off by him even when his country is at war, by the simple
expedient of subscribing to an oath of allegiance to support the constitution
or laws of a foreign country, and an enemy country at that, or by accepting a
commission in the military, naval or air service of such country, or by
deserting from the Philippine Army, Navy, or Air Corps.
It would shock the conscience of any enlightened citizen to say that
this appellant, by the very fact of committing the treasonous acts charged
against him, the doing of which under the circumstances of record he does
not deny, divested himself of his Philippine citizenship and thereby placed
himself beyond the arm of our treason law. For if this were so, his very crime
would be the shield that would protect him from punishment.
"But the laws do not admit that the bare commission of a crime
amounts of itself to a divestment of the character of citizen, and
withdraws the criminal from their coercion. They would never prescribe
an illegal act among the legal modes by which a citizen might
disfranchise himself; nor render treason, for instance, innocent, by
giving it the force of a dissolution of the obligation of the criminal to his
country." (Moore, International Law Digest, Vol III, p. 731.)
"696. No person, even when he has renounced or incurred
the loss of his nationality, shall take up arms against his native country;
he shall be held guilty of a felony and treason, if he does not strictly
observe this duty. " (Fiore's International Law Codified, translation from
Fifth Italian Edition by Borchard.)
As to the third assignment of error, the Solicitor General agrees with
counsel that it is improper to separately take into account against appellant
the aggravating circumstances of (1) the aid of armed men and (2) the
employment of a band in appraising the gravity of the crime. We likewise are
of the same opinion, considering that under paragraph 6 of article 14 of the
Revised Penal Code providing that "whenever more than three armed
malefactors shall have acted together in the commission of an offense it
shall be deemed to have been committed by a band," the employment of
more than three armed men is an essential element of and inherent in a
band. So that in appreciating the existence of a band the employment of
more than three armed men is automatically included, there being only the
aggravating circumstance of band to be considered.
As to appellant's fourth assignment of error, the contention is clearly
unacceptable that appellant acted in obedience to an order issued by a
superior and is therefore exempt from criminal liability, because he allegedly
acted in the fulfillment of a duty incidental to his service for Japan as a
member of the Makapili. It is obvious that paragraphs 5 and 6 of article 11 of
our Revised Penal Code cannot be construed as sanctioning as legal acts
done in compliance with duties to or orders from a foreign sovereign, any
more than obedience to an illegal order. The construction contended for by
appellant could entail in its potentialities even the destruction of this
Republic.
The contention that as a member of the Makapili appellant had to obey
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 his Japanese masters underpain of severe penalty, and that therefore his
acts should be considered as committed under the impulse of an irresistible
force or uncontrollable fear of an equal or greater injury, is no less repulsive.
Appellant voluntarily joined the Makapili with full knowledge of its avowed
purpose of rendering military aid to Japan. He knew the consequences to be
expected — if the alleged irresistible force or uncontrollable fear
subsequently arose, he brought them about himself freely and voluntarily.
But this is not all; the truth of the matter is, as the Solicitor General well
remarks, that "the appellant actually acted with gusto during the butchers of
Banaban." He was on that occasion even bent on more cruelty than the very
ruthless Japanese themselves as regards the little children. And his Japanese
matters — so fate willed it — were the very ones who saved the little girls,
Clarita Perez and Maria Paulino, who were declined to become the star
witnesses against him on the day of reckoning.
Conformably to the recommendation of the Solicitor General, we find
appellant guilty of the crime of treason with multiple murder committed with
the attendance of one aggravating circumstance, that of "armed band," thus
discarding the first aggravating circumstance considered by the trial court. A
majority of the Court voted to affirm the judgment appealed from, imposing
the death penalty, convicting defendant and appellant to pay a fine of
P20,000, an indemnity of P2,000 to the heirs of each of victims named in the
third paragraph of the lower courts decision, and the costs. But due to the
dissent of Mr. Justice Perfecto from the imposition of the death penalty, in
accordance with the applicable legal provisions we modify the judgment
appealed from as regards the punishment to be inflicted, and sentence
defendant and appellant Pedro Manayao to the penalty of reclusion
perpetua, with the accessories of article 41 of the Revised Penal Code, to pay
a fine of P20,000, an indemnity of P2,000 to the heirs of each of the victims
named in the third paragraph of the lower court's decision, and the costs. So
ordered.
Moran, C.J., Feria, Pablo, Bengzon, Briones, Hontiveros, Padilla and
Tuason, JJ., concur.

Separate Opinions
PARAS, J., concurring:

I concur in the result because I am convinced that the appellant is

guilty of multiple murder and he even deserves the maximum penalty.

PERFECTO, J., concurring and dissenting:

The main facts in this case upon which the prosecution relies are based
on the testimonies of three witness two ten-year-old girls, Clarita Perez and
Maria Paulino, and Policarpio Tigas.
From the testimony of Maria Paulino we quote:
"Q. You said that you are ten years old, do you know what is the
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 meaning of telling a lie?
A. I do not know.
"Q. Do you know the difference between falsity and truth?
A. I do not know.
xxx xxx xxx
"Q. Do you know how to read?
A. What, Sir?
"Q. How to read.
A. No, Sir.
"Q. Do you know how to pray?
A. I forgot how to pray." (Pages 44 and 45, t.s.n.)
From the testimony of Clarita Perez, we quote:
"Q. Please state your name and your personal circumstances.
A. Clarita Perez, 10 years of age, and resident of the sitio of
Banaban.
"Q. What town?
A. I do not know.
"JUDGE NEPOMUCENO:
"Q. Is Banaban a sitio in the town of Malolos, or Quiñgua, or Bigaa?
A. I do not know.
"Q. You do not know?
A. I do not know, sir.
"JUDGE ABAD SANTOS:
"Q. What province?
A. I do not know." (page 4, t.s.n.)
Witness Policarpio Tigas, municipal policeman, testified that about
sixty persons, including his sister Eufemia, were killed in Banaban, but he
was not killed "because I·was with my guerrilla outfit then." He saw the
killing 'because on the 29th day of January, I came down from the mountains
and went to the barrio to see my family to take them away from the place,
but upon arriving there I saw that the people were being gathered and
placed behind the chapel. After placing the people behind the chapel I saw
the massacre of the group begun. In my interest to ascertain the fate of my
sister and so that I would not be seen, I crept to a creek and stayed there to
find out what would be the end of it all. While I was thus hiding in that creek I
saw my sister killed by Pedro Manayao, the painter. After that, convinced of
the fate of my sister and knowing the one who killed her was Pedro
Malnayao , and because I was afraid that if I stayed there longer I might be
caught by the people and knowing that if I would be caught I would also be
killed, I left the place." (Page 102, t. s. n.) He was fifty meters away from the
place of the massacre. "The dead bodies were burned. I felt to go to the
mountains. I first put my mother in a safe place, and after that I Joined my
companions and together we returned to the town." Eufemia "was buried by
my father'' on the "second day after the killing." (P. 103, t.s.n.)
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 The above are the facts testified in the direct testimony of the witness.
That he should come from the mountains and arrive at the place at the very
instant when the massacre was about to be executed; that he should have
remained hidden in a creek, fifty meters away, to find out the final fate of his
sister; that, instead of remaining to witness the gory scene, he did not
depart to call his coguerrilleros who, according to him, were well armed, in
order to attack the mass killers and try to save those who were gathered to
be killed; that he left precisely after he saw his sister decapitated,
notwithstanding which he testified that the corpses were burned but that the
body of his sister was buried by his father the day after the killing, — these,
besides other details, are things that lead us to the veracity of the testimony
of this witness, thus leaving to be considered only the testimonies of the two
girls.
Although we are inclined to believe that appellant must have been
seen by the two girls at the place of the massacre in the company of the
Japanese, we cannot reconcile ourselves in believing all the details as
narrated by them, so as to justify the inflicting of the supreme penalty upon
appellant. Although we are constrained to believe in the substantial
truthfulness of the two girls, considering their tender age which makes them
highly susceptible to suggestions, and the additional significant fact that
Maria Paulino does not know "the meaning of telling a lie" nor "the difference
between falsity and truth," and history and experience have time and again
shown that human fallibility is more pronounced in children of tender age,
we vote for the modification of the appealed decision in the sense that
appellant be sentenced to reclusion perpetua.

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