THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. APOLINAR ADRIANO, DEFENDANT AND APPELLANT.

This is an appeal from a judgment of conviction for treason by the People’s
Court sentencing the accused to life imprisonment, P10,000 fine, and the
costs.

The information charged:

“That between January and April, 1945 or thereabout, during the occupation of
the Philippines by the Japanese Imperial Forces, in the Province of Nueva Ecija
and in the mountains in the Island of Luzon, Philippines, and within the
jurisdiction of this Court, the above-named accused, Apolinar Adriano, who is
not a foreigner, but a Filipino citizen owing allegiance to the United States
and the Commonwealth of the Philippines, in violation of said allegiance, did
then and there willfully, unlawfully, criminally and treasonably adhere to the
Military Forces of Japan in the Philippines, against which the Philippines and
the United States were then at war, giving the said enemy aid and comfort in the
manner as follows:

“That as a member of the Makapili, a military organization established and
designed to assist and aid militarily the Japanese Imperial Forces in the
Philippines in the said enemy’s war efforts and operations against the United
States and the Philippines, the herein accused bore arm and joined and assisted
the Japanese Military Forces and the Makapili Army in armed conflicts and
engagements against the United States armed forces and the Guerrillas of the
Philippine Commonwealth in the Municipalities of San Leonardo and Gapan,
Province of Nueva Ecija, and in the mountains of Luzon, Philippines, sometime
between January and April, 1945. Contrary to Law.”

The prosecution did not introduce any evidence to substantiate any of the
facts alleged except that of defendant’s having joined the Makapili
organization. What the People’s Court found is that the accused participated
with Japanese soldiers in certain raids and in confiscation of personal
property. The court below, however, said these acts had not been established by
the testimony of two witnesses, and so regarded them merely as evidence of
adherence to the enemy. But the court did find established under the two-witness
rule, so we infer, “that the accused and other Makapilis had their headquarters
in the enemy garrison at Gapan, Nueva Ecija; that the accused was in Makapili
military uniform; that he was armed with rifle; and that he drilled with other
Makapilis under a Japanese instructor; * * * that during the same period, the
accused in Makapili military uniform and with a rifle, performed duties as
sentry at the Japanese garrison and Makapili headquarters in Gapan, Nueva
Ecija;” “that upon the liberation of Gapan, Nueva Ecija, by the American forces,
the accused and other Makapilis retreated to the mountains with the enemy;” and
that “the accused, rifle in hand, later surrendered to the Americans.”

Even the findings of the court recited above in quotations are not borne out
by the proof of two witnesses. No two of the prosecution witnesses testified to
a single one of the various acts of treason imputed by them to the appellant.
Those who gave evidence that the accused took part in raids and seizure of
personal property, and performed sentry duties and military drills, referred to
acts allegedly committed on different dates without any two witnesses coinciding
in any one specific deed. There is only one item on which the witnesses agree:
it is that the defendant was a Makapili and was seen by them in Makapili uniform
carrying arms. Yet, again, on this point it cannot be said that one witness is
corroborated by another if corroboration means that two witnesses have seen the
accused doing at least one particular thing, be it a routine military chore, or
just walking or eating.

We take it that the mere fact of having joined a Makapili organization is
evidence of both adherence to the enemy and giving him aid and comfort. Unless
forced upon one against his will, membership in the Makapili organization
imports treasonable intent, considering the purposes for which the organization
was created, which, according to the evidence, were “to accomplish the
fulfillment of the obligations assumed by the Philippines, in the Pact of
Alliance with the Empire of Japan;” “to shed blood and sacrifice the lives of
our people in order to eradicate Anglo-Saxon influence in East Asia;” “to
collaborate unreservedly and unstintedly with the Imperial Japanese Army and
Navy in the Philippines;” and “to fight the common enemies.” Adherence, unlike
overt acts, need not be proved by the oaths of two witnesses. Criminal intent
and knowledge may be gathered from the testimony of one witness, or from the
nature of the act itself, or from the circumstances surrounding the act. (Cramer
vs. U. S., 65 Sup. Ct., 918.)

At the same time, being a Makapili is in itself constitutive of an overt act.
It is not necessary, except for the purpose of increasing the punishment, that
the defendant actually went to battle or committed nefarious acts against his
country or countrymen. The crime of treason was committed if he placed himself
at the enemy’s call to fight side by side with him when the opportune time came
even though an opportunity never presented itself. Such membership by its very
nature gave the enemy aid and comfort. The enemy derived psychological comfort
in the knowledge that he had on his side nationals of the country with which his
was at war. It furnished the enemy aid in that his cause was advanced, his
forces augmented, and his courage was enhanced by the knowledge that he could
count on men such as the accused and his kind who were ready to strike at their
own people. The practical effect of it was no different from that of enlisting
in the invader’s army.

But membership as a Makapili, as an overt act, must be established by the
deposition of two witnesses. Does the evidence in the present ease meet this
statutory test? Is the two-witness requirement fulfilled by the testimony of one
witness who saw the appellant in Makapili uniform bearing a gun one day, another
witness another day, and so forth?

The Philippine law on treason is of Anglo-American origin and so we have to
look for guidance from American sources on its meaning and scope. Judicial
interpretation has been placed on the two-witness principle by American courts,
and authoritative text writers have commented on it. We cull from American
materials the following excerpts which appear to carry the stamp of
authority.

Wharton’s Criminal Evidence, Vol. 3, section 1396, p. 2282, says:

“In England the original Statute of Edward, although requiring both witnesses
to be to the same overt act, was held to mean that there might be one witness to
an overt act and another witness to another overt act of the same species of
treason; and, in one case it has been intimated that the same construction might
apply in this country. But, as Mr. Wigmore so succinctly observes: ‘The
opportunity of detecting the falsity of the testimony, by sequestering the two
witnesses and exposing their variance in details, is wholly destroyed by
permitting them to speak to different acts.’ The rule as adopted in this country
by all the constitutional provisions, both state and Federal, properly requires
that two witnesses shall testify to the same overt act. This also is now the
rule in England.”

More to the point is this statement from VII Wigmore on Evidence, 3d ed.,
section 2038, p. 271:

“Each of the witnesses must testify to the whole of the overt act; or, if it
is separable, there must be two witnesses to each part of the overt
act.”

Learned Hand, J., in United States vs. Robinson (D. C. S. D., N. Y.,
259 Fed., 685), expressed the same idea: “It is necessary to produce two direct
witnesses to the whole overt act. It may be possible to piece bits
together of the overt act; but, if so, each bit must have the support of
two oaths; * * *.” (Copied as footnote in Wigmore on Evidence, ante.) And
in the recent case of Cramer vs. United States (65 Sup. Ct., 918),
decided during the recent World War, the Federal Supreme Court lays down this
doctrine: “The very minimum function that an overt act must perform in a treason
prosecution is that it show sufficient action by the accused, in its setting, to
sustain a finding that the accused actually gave aid and comfort to the enemy.
Every act, movement, deed, and word of the defendant charged to
constitute treason must be supported by the testimony of two witnesses.”

In the light of these decisions and opinions we have to set aside the
judgment of the trial court. To the possible objection that the reasoning by
which we have reached this conclusion savors of sophism, we have only to say
that the authors of the constitutional provision of which our treason law is a
copy purposely made conviction for treason difficult, the rule “severely
restrictive.” This provision is so exacting and so uncompromising in regard to
the amount of evidence that where two or more witnesses give oaths to an overt
act and only one of them is believed by the court or jury, the defendant, it has
been said and held, is entitled to discharge, regardless of any moral conviction
of the culprit’s guilt as gauged and tested by the ordinary and natural methods,
with which we are familiar, of finding the truth. Natural inferences, however
strong or conclusive, flowing from the testimony of a most trustworthy witness
or from other sources are unavailing as a substitute for the needed
corroboration in the form of direct testimony of another eye-witness to the same
overt act.

The United States Supreme Court saw the obstacles placed in the path of the
prosecution by a literal interpretation of the rule of two witnesses but said
that the founders of the American government fully realized the difficulties and
went ahead not merely in spite but because of the objections. (Cramer vs.
United States, ante.) More, the rule, it is said, attracted the members
of the Constitutional Convention “as one of the few doctrines of Evidence
entitled to be guaranteed against legislative change.” (Wigmore on Evidence,
ante, section 2039, p. 272, citing Madison’s Journal of the Federal
Convention, Scott’s ed., II, 564, 566.) Mr. Justice Jackson, who delivered the
majority opinion in the celebrated Cramer case, said: “It is not difficult to
find grounds upon which to quarrel with this Constitutional provision. Perhaps
the framers placed rather more reliance on direct testimony than modern
researchers in psychology warrant. Or it may be considered that such a
quantitative measure of proof, such a mechanical calibration of evidence is a
crude device at best or that its protection of innocence is too fortuitous to
warrant so unselective an obstacle to conviction. Certainly the treason rule,
whether wisely or not, is severely restrictive.” It must be remembered, however,
that the Constitutional Convention was warned by James Wilson that ” ‘Treason
may sometimes be practiced in such a manner, as to render proof extremely
difficult—as in a traitorous correspondence with an enemy.’ The provision was
adopted not merely in spite of the difficulties it put in the way of prosecution
but because of them. And it was not by whim or by accident, but because one of
the most venerated of that venerated group considered that ‘prosecutions for
treason were generally virulent.’ “

Such is the clear meaning of the two-witness provision of the American
Constitution. By extension, the law-makers who introduced that provision into
the Philippine statute books must be understood to have intended that the law
should operate with the same inflexibility and rigidity as the American
forefathers meant.

The judgment is reversed and the appellant acquitted with costs charged de
oficio.

Moran, C.J., Feria, Pablo, Perfecto, Bengzon, Briones,
Hontiveros, and Padilla, JJ., concur.
Paras, J., concurs in
the result.

---

HILADO, J.:

Being unable to bring myself to agree with the majority upon the application
of the two-witness rule herein, I am constrained to dissent.

As I see it, being a member of the Makapili during the Japanese
occupation of those areas of the Philippines referred to in the information, was
one single, continuous, and indivisible overt act of the present accused whereby
he gave aid and comfort to the Japanese invaders. That membership was one and
the same from the moment he entered the organization till he was captured.
The fact that he was seen on a certain day by one of the state witnesses being a
member of the Makapili, and was seen by another state witness but on a
different day being a member of the same organization, does not mean that his
membership on the first day was different or independent from his membership on
the other day—it was the selfsame membership all the way through. A contrary
construction would entail the consequence that the instant defendant, if we are
to believe the allegations and proofs of the prosecution, became or was a member
of the Makapili as many times as there were days from the first to the
last.

T. E. Holland defined “acts” in jurisprudence as follows:

“Jurisprudence is concerned only with outward acts. An ‘act’ may therefore be
defined * * * as ‘a determination of will, producing an effect in the sensible
world’. The effect may be negative, in which case the act is properly
described as a ‘forbearance’. The essential elements of such an act are three,
viz., an exercise of the will, an accompanying state of consciousness, a
manifestation of the will”. (Webster’s New International Dictionary, 2d ed.,
unabridged, p. 25.)

There can, therefore, be no question that being a member of the
Makapili was an overt act of the accused. And the fact that no two
witnesses saw him being such a member on any single day or on the self-same
occasion does not, in my humble opinion, work against the singleness of
the act, nor does the fact that no two witnesses have testified to that same
overt act being done on the same day or occasion argue against holding the
two-witness rule having been complied with.

My view is that, the act being
single, continuous and indivisible, at least two witnesses have
testified thereto notwithstanding the fact that one saw it on one day and the
other on another day.