G.R. No. L-4445. February 28, 1955

This is an appeal by accused Manuel Beronilla, Policarpo Paculdo, Filipino
Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance
of Abra (Criminal Case No. 70) convicting them of murder for the execution of
Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz, Province
of Abra.

Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war,
and continued to serve as Mayor during the Japanese occupation, until March 10,
1943, when he moved to Bangued because of an attempt upon his life by unknown
persons. On December 18, 1944, appellant Manuel Beronilla was appointed Military
Mayor of La Paz by Lt Col. R. H. Arnold, regimental commander of the 15th
Infantry, Philippine Army, operating as a guerrilla unit in the province of
Abra. Simultaneously with his appointment as Military Mayor, Beronilla received
copy of a memorandum issued By Lt. Col. Arnold to all Military Mayors in
Northern Luzon, authorizing them “to appoint a jury of 12 bolomen to try persons
accused of treason, espionage, or the aiding and abetting (of) the enemy”
(Exhibit 9). He also received from the Headquarters of the 15th Infantry a list
of all puppet government officials of the province of Abra (which included
Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all
Military Mayors to investigate said persons and gather against them complaints
from people of the municipality for collaboration with the enemy “(Exhibit
12-a).

Sometime in March, 1945, while the operations for the liberation of the
province of Abra were in progress, Arsenio Borjal returned to La Paz with his
family in order to escape the bombing of Bangued. Beronilla, pursuant to his
instructions, placed Borjal under custody and asked the residents of La Paz to
file complaints against him. In no time, charges of espionage, aiding the enemy,
and abuse of authority were filed against Borjal; a 12-man jury was appointed by
Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico,
Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos,
Mariano Ajel, Felimon Labuguen, Felix Murphy, Pedro Turqueza, and Delfin
Labuguen as members; while Felix Alverne and Juan Balmaceda were named
prosecutors, Policarpo Paculdo as clerk of the jury, and Lino Inovermo as
counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared and
served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for
several days upon instructions of Headquarters, 15th Infantry. The trial lasted
19 days up to April 10, 1945; the jury found Borjal guilty on all counts and
imposed upon him the death penalty (Exhibits M to M-2). Pursuant to instructions
from his superiors. Mayor Beronilla forwarded the records of the case to the
Headquarters of the 15th Infantry for review. Said records were returned by Lt.
Col. Arnold to Beronilla on April 18, 1945 with the following instructions:

“Headquarters 3rd Military District
15th Infantry,
USAFIP
In the Field

16 April 1945

Msg. No. 337

Subject: Arsenio Borjal, Charges Against
To: Military Mayor of La Paz,
Abra.

1. Returned’ herewith are the papers on the case of Arsenio Borjal.

2. This is a matter best handled by your government and whatever disposition
you make of the case is hereby approved.

(Sgd.) R. H. Arnold
Lieut.-Colonel, 15th Inf.,
PA
Commanding

Received April 18, 1945, 10:35 a.m.

(Sgd.) Manuel Beronilla
Military Mayor, La Paz, Abra

(Exhibits 8, 8-a)

and on the night of the same day, April 18, 1945, Beronilla ordered the
execution of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope
as grave digger. Father Luding of the Roman Catholic Church was asked to
administer the last confession to the prisoner, while Father Filipino Velasco of
the Aglipayan Church performed the last rites over Borjal’s remains. Immediately
after the execution, Beronilla reported the matter to Col. Arnold who, in reply
to Beronilla’s report, sent him the following message:

“Headquarters 3rd Military District
15 Infantry, USAPIP
NL
In the Field

22 April 1945

Msg. No. 398
Subject: Report and information Re Borjal case
To:
Military Mayor Beronilla

1. Received your letter dated 18 April 1945, subject, above.

2. My request that you withhold action in this case was only dictated because
of a query from Higher Headquarters regarding same. Actually, I believe there
was no doubt as to the treasonable acts of the accused Arsenio Borjal and I know
that your trial was absolutely impartial and fair. Consequently, I can only
compliment you for your impartial but independent way of handling the whole
case.

Best regards,
(Sgd.) R. H. Arnold
Lieut.-Colonel, 15th
Infantry, PA
Commanding

Received April 26, 1945 7:00 a.m.

(Sgd.) Manuel Beronilla
Military Mayor, La Paz, Abra“

(Exhibit 21, 21-a)

Two years thereafter, Manuel Beronilla as military mayor, Policarpo Paeuldo
as Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus
Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos,
Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy,
Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico as
executioner, Severo Afos as grave digger, and Father Filipino Velasco as an
alleged conspirator, were indicted in the Court of First Instance of Abra for
murder, for allegedly conspiring and confederating in the execution of Arsenio
Borjal. Soon thereafter, the late President Manuel A. Roxas issued Executive
Proclamation No. 8, granting amnesty to all persons who committed acts penalized
under the Revised Penal Code in furtherance of the resistance to the enemy
against persons aiding in the war efforts of the enemy. Defendant Jesus
Labuguen, then a master sergeant in the Philippine Army, applied for and was
granted amnesty by the Amnesty Commission, Armed Forces of the Philippines
(Records, pp. 618-20). The rest of the defendants filed their application for
amnesty with the Second Guerrilla Amnesty Commission, who denied their
application on the ground that the crime had been inspired by purely personal
motives, and remanded the case to the Court of First Instance of Abra for trial
on the merits.

Upon motion of defense counsel, the case against defendant Jesus Labuguen,
who had been granted amnesty by the Amnesty Commission of the Armed Forces of
the Philippines, was ordered provisionally dismissed: defendant Juan Balmaceda
was discharged from the information so that he might be utilized as state
witness, altho actually he was not called to testify; while the case against
defendants Antonio Palope (the grave digger) and Demetrio Afos (a boloman) was
dismissed for lack of sufficient evidence.

Trial proceeded against the rest of the defendants; and on July 10, 1950, the
Court below rendered judgment, acquitting the members of the jury and the grave
digger Antonio Palope on the ground that they did not participate in the killing
of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo
Afos, and Lauro Parado upon insufficiency of evidence to establish their
participation in the crime; but convicting defendants Manuel Beronilla,
Policarpo Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and
co-principals of the crime of murder, and sentencing them to suffer imprisonment
of from 17 years, 4 months and 1 day of reclusion temporal to reclusion
perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in
the amount of P4,000 with subsidiary imprisonment in case of insolvency, and
each to pay one fourth of the costs. In convicting said defendants, the Court
a quo found that while the crime committed by them fell within the
provisions of the Amnesty Proclamation, they were not entitled to the benefits
thereof because the crime was committed after the expiration of the time limit
fixed by the amnesty proclamation;: i.e., that the deceased Arsenio Borjal was
executed after the liberation of La Paz, Abra.

In view of the sentence meted by the Court below, the accused Beronilla,
Paculdo, Velasco and Adriatico appealed to this Court.

The records are ample to sustain the claim of the defense that the arrest,
prosecution and trial of the late Arsenio Borjal were done pursuant to express
orders of the 15th Infantry Headquarters. (Exhibits 9 and 12-a), instructing all
military mayors under its jurisdiction to gather evidence against puppet
officials and to appoint juries of at least 12 bolomen to try the accused and
find them guilty by two thirds vote. It is to be noted that Arsenio Borjal was
specifically named in the list of civilian officials to be prosecuted (Exhibit
12-b).

In truth, the prosecution does not seriously dispute that the trial and
sentencing of Borjal was done in accordance with instructions of superior
military authorities, altho it points to irregularities that were due more to
ignorance of legal processes than personal animosity against Borjal. The state,
however, predicates its case principally on the existence of the radiogram
Exhibit H from Colonel Volckmann , overall area commander, to Lt. Col. Arnold,
specifically calling attention to the illegality of Borjal’s conviction and
sentence, and which the prosecution claims was known to the accused Beronilla.
Said message is as follows:

“Message:

VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED
JURY SYSTEM PD BELIEVE THAT THIS BODY 13 ILLEGAL A-ND CANNOT TRY PERSONS FOR
ESPIONAGE OR COLLABORATION NOR METE OUT PUNISHMENTS THEREOF PD SPECIFIC INSTANCE
IS BROUGHT TO YOUR ATTENTION FOR PROPER AND IMMEDIATE ACTION ON ONE ARSENIO
BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED PD
REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN”

(EXH. H)

The crucial question thus becomes whether or not this message, originally
sent to Arnold’s quarters in San Esteban , Ilocos Sur, was relayed by the latter
to appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945,
together with the package of records of Borjal’s trial that was admittedly
returned to and received by Beronilla on that date, after review thereof by
Arnold (Exhibits 8-8-a). Obviously, if the Volckmann message was known to
Beronilla, his ordering the execution of Borjal on the night of April 18, 1945
can not be justified.

We have carefully examined the evidence on this important issue, and find no
satisfactory proof that Beronilla did actually receive the radiogram Exhibit H
or any copy thereof. The accused roundly denied it. The messenger, or “runner”,
Pedro Molina could not state what papers were enclosed in the package he
delivered to Beronilla on the morning in question, nor could Francisco Bayquen
(or Bayken), who claimed to have been present at the delivery of the message,
state the contents thereof.

The only witness who asserted that Beronilla received and read the Volckmann
message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to
have been, as Beronilla’s bodyguard, present at the receipt of the message and
to have read it over Beronilla’s shoulder. This testimony, however, can not be
accorded credence, for the reason that in the affidavit executed by this witness
before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention
of the reading, or even the receipt, of the message. In the affidavit, he
stated:

“Q. In your capacity as policeman, do you know of any unusual occurrence that
transpired in La Paz, Abra?—A. Yes, sir.
Q. Will you state what is that
event?—A. On April 17, 1945, I was assigned as guard at the Presidencia where
Mayor Arsenic Borjal is confined. On the 18th of April, 1945, six bolomen came
to me while I was on duty as guard, that Mayor Borjal should be tied, on orders
of Mayor Manuel Beronilla. Mayor Borjal wanted to know the reason why he would
be tied, as he has not yet learned of the decision of the jury against him.
Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his being
ordered to be tied. I personally delivered the note of Borjal to Mayor
Beronilla. Mayor Beronilla did not answer the note, but instead told me that I
should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I
returned to the Presidencia, and Mayor Borjal was tied, as that was the order of
Mayor Beronilla.”

The plain import of the affidavit is that the witness Rafael Balmaceda was
not with Beronilla when the message arrived, otherwise Beronilla would have
given him his orders direct, as he (Balmaceda) testified later at the trial.
Moreover, it is difficult to believe that having learned of the contents of the
Volckmann message, Balmaceda should not have relayed it to Borjal, or to some
member of the latter’s family, considering that they were relatives. In
addition, Balmaceda was contradicted by Bayken, another prosecution witness, as
to the hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that
the accused-appellants decided to kill Borjal in the early evening of April 18,
while Bayken testified that the agreement was made about ten o’clock in the
morning, shortly after the accused had denied Borjal’s petition to be allowed to
hear mass.

Upon the other hand, Beronilla’s conduct belies his receipt of the Volckmann
message. Had he executed Borjal in violation of superior orders, he would not
have dared to report it to Arnold’s headquarters on the very same day, April
18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what
is even more important, if Borjal was executed contrary to instructions, how
could U. Colonel Arnold on April 22, 1945, write in reply (Exhibits 21, 21-a) “I
can only compliment you for your impartial but independent way of handling the
whole case” instead of berating Beronilla and ordering his court martial for
disobedience?

Our conclusion is that Lt. Col. Arnold, for some reason that can not now be
ascertained, failed to transmit the Volckmann message to Beronilla. And this
being so, the charge of criminal conspiracy to do away with Borjal must be
rejected, because the accused had no need to conspire against a man who was, to
their knowledge, duly sentenced to death.

The state claims that the appellants held grudges against the late Borjal.
Even so, it has been already decided that the concurrence of personal hatred and
collaboration with the enemy as motives for a liquidation does not operate to
exclude the case from the benefits of the Amnesty claimed by appellants, since
then “it may not be held that the manslaughter stemmed from purely personal
motives” (People vs. Barrioquinto,^[*] G.R. Nos. L-2011 and 2267, June 30, 1951).
Actually, the conduct of the appellants does not dispose that these appellants
were impelled by malice (dolo). The arrest and trial of Borjal were made upon
express orders of the higher command; the appellants allowed Borjal to be
defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal’s
sister; the trial lasted nineteen (19) days; it was suspended when doubts arose
about, its legality, and it was not resumed until headquarters (then in
Langangilang, Abra) authorized its resumption and sent an observer (Esteban
Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure were
followed; and when the verdict of guilty was rendered and death sentence
imposed, the records were sent to Arnold’s headquarters for review, and Borjal
was not punished until the records were returned eight days later with the
statement of Arnold that “whatever disposition you make of the case is hereby
approved” (Exhibit 8), which on its face was an assent to the verdict and the
sentence. The lower Court, after finding that the late Arsenio Borjal had really
committed treasonable acts, (causing soldiers and civilians to be tortured, and
hidden American officers to be captured by the Japanese) expressly declared that
“the Court is convinced that it was not for political or personal reason that
the accused decided to kill Arsenio Borjal” (Decision, p. 9; Record, p.
727).

It appearing that the charge is the heinous crime of murder, and that the
accused-appellants acted upon orders, of a superior officers that they, as
military subordinates, could not question, and obeyed in good faith, without
being aware of their illegality, without any fault or negligence on their part,
we can not say that criminal intent has been established (U.S. vs.
Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent, of the
Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb.
1921; 25 March 1929). Actus non facit reum nisi mens sit rea.

“To constitute a crime, the act must, except in certain crimes made such by
statute, be accompanied by a criminal intent, or by such negligence or
indifference to duty or to consequences, as, in law, is equivalent to criminal
intent. The maxim is, actus non facit reum, nisi wiens rea-a crime is
not committed if the mind of the person performing the act complained of be
innocent.” (U. S. vs. Catolico, 18 Phil., 507).

But even assuming that the accused-appellants did commit the crime with which
they are charged, the Court below should not have denied their claim to the
benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072) on the
ground that the slaying of Arsenio Borjal took place after actual liberation of
the area from enemy control and occupation. The evidence on record regarding the
date of liberation of La Paz, Abra, is contradictory. The Military Amnesty
Commission that decided the case of .one of the original accused, Jesus
Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to
its records; and this finding was accepted by Judge Letargo when he dismissed
the case against said accused on March 15, 1949. On the other hand, Judges Bocar
and Hilario, who subsequently took cognizance of the case, relied on Department
Order No. 25, of the Department of the Interior, dated August 12, 1948, setting
the liberation of the Province of Abra on April 4, 1945, fifteen days before
Borjal was slain. The two dates are not strictly contradictory; but even if they
are, we believe these appellants should be given the benefit of the Presidential
directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946)
that “any reasonable doubt as to whether a given case falls within the (amnesty)
proclamation shall be resolved in favor of the accused” (42 Off. Gaz., 2360), as
was done in People vs. Gajo, 84 Phil., 107, 46 Off. Gaz., (No. 12) p.
6093.

For the reasons stated, the judgment appealed from is reversed and the
appellants are acquitted, with costs de oficio.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo,
Bautista Angelo and Concepcion, JJ., concur.

Judgment reversed.

---

^[*] 89 Phil., 414.