THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. SEVERO BASCON (ALIAS KID MORO), DEFENDANT AND APPELLANT.

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 counts 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 willfully, 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 persons, engaged
in the resistance movement far the Kempei Tai, torturing and maltreating persons
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 Severo Bascon alias
“Kid Moro” is a Filipino citizen.

From a careful study of fee evidence on record we find the
following facts to have been duly 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
appellant who was at that time armed with a revolver land one named Turang who
forthwith pointed to Cristobal as a guerrilla soldier. As a matter of fact, at
the time, Cristobal was a sergeant in the guerrilla forces in the province of
Cebu, aid he had gone to the city upon instructions 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 whieh 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
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 fingers 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 days. The evidence further show that after tills release,
Cristobal wast 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 one Pat. 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
revolver. 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 specially 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 his 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 a
period of four (4) months and that even on the day of the tidal which took place
more, than two (2) years after his torture, he still felt pains in his back.
Dacuya also told the court that Gerardo was already dead and so was unable to
testify during the trial.

There is no doubt in the mind of the Court as to the guilt of
the appellant of foe crime of treason. By his acts and conduct duly proven
during the trial, he, a Filipino owing allegiance to the United States and to
the Government of the Philippine 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 in 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 appellant, was employed by the Japanese as an interpreter. This
fact, of course, does not and cannot affect the innocence or guilt of Bascon.
Neither does it influence this Court in passing upon the merits 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 C.I.C. (Counter Intelligence Corps of the United States liberation forces)
and was cleared by it and given clearance papers. 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 in fact, stayed in prison and under
custody. If this is true, it is indicative of the hostile feeling in the
community against the appellant for being an all-out pro Japanese, arming
himself with a revolver and accompanying and helping the Japanese soldiers in
their frequent raids 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 the 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 costs against the
appellant. So ordered.

Moran, C.J., Paras, Feria, Pablo, Bengzon, and
Tuazon, JJ., concur.

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DISSENTING

PERFECTO, J.:

Appellant is entitled to acquittal upon two grounds,
namely:

1. Because not a single overt act has been proved under the two-witness rule of
   article 114 of the Revised Penal Code.

2. Because not one of the 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 appellant’s alleged participation in the arrest of Cristobal Cortes and
Inocencia Mabini at about 3 o’clock in the afternoon of May 3, 1943.

The sisters 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 arrests? 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 it took 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. Padllla
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 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.

The fact that not one of said overt acts has been proved under
the two-witness rule can be emphasized by the circumstance 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 mention them specifically, as it did in
count 2 of the information, where it is stated that appellant 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.

Appellant cannot be convicted legally of said two arrests, upon
which he has not been duly informed by proper allegations in the information.
Appellant was entitled, as a matter of constitutional right (Art. III, secs.
1-17 of the Constitution), to be informed of the nature of the specific crime
imputed 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 opponents are entitled to all ruses, deceptions and surprises. It is not a
heartless war in which belligerents may resort to treachery, like the
treacherous Pearl 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 lawyers who thrust their foils against unguarded
opponents, but on the merits of a controversy in which all the cards have to be
laid on the table honestly and even in a true Christian spirit.

All the foregoing show that the only alternative for this Court
in this case is to reverse the appealed.

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DISIDENTE

BRIONES, M.:

Creo que el apelante debe ser absuelto por no haber 83 prqbado
la acusacion contra 61 fuera de toda duda razonable.

Se formularon los cargos contra el acusado enuna poca engue los
prejuicios sobre la colaboracidn con los japoneses eran muy pronunciados y los
guerrilleros, unos genuinos y otros falsos, vefan un traldor en eada vecino de
conducta. algiln tanto sospeehosa durante. la ooupacidn, En el caso. particular
del acusado y apelante Ostos prejuicios se habrn acentuado por estar el misino
casado: con una mujer nacidaen Hawaii de padres japoneses, si bien ciudadana
americana, segiin alegacidn no impugnada. En algunas ocasiones esta mujer fu6
utilizaia por los niilitares japoneses icomo interprete, en ausencia del que
regularmente desempenaba este oficio.

Es harto signif icativo el; neclio de que habi ndose fiormulado
en la querella tres cargos contra el acusado, doa se sobreseyeron por no
liaberse presentado. sobre los mismos ninguna prueba. Without any evidence on
record to prove the charges under counts Nos. 2 and 3. dice el Tribunal del
Pueblo en su. sentencia. No prueba esto, por lo fienos, la Tigereza conque se
redactd y presentb, querella.

Otra cifcunstanci’a que milita en fayor del acusado vj le hace
acreVdor v a los beneficios de una duda razonble es el liaber sido investigado
inmediatamente despuds de la liberacion por agentes de la 010, entre ellos un
teniente americano. llamado Greenwall, saliendo exonerado de dioiia
Investigacidn. Sin embargo, por consejo del mismo Greenwall el acusado isrefirid
continual detenido para su propia seguridad personal, pues los guerrilleros le
miraban mal y temfa que le hiciesen dailo Entre la imparcialidad de los agentes
de la CIC y el apaslo namiento de los guerrilleros, opto por lo primero.

Es verdad que el acusado no pudo presentar en la vista los
papeles que acreditaban su ezoneracidn, pero explica esta omisidn dioiendo que
los habla perdido en unp de sus traslados. De todas maneras no hay en autos
ninguna prueba tendente a refutar el liecho de la referida exoneracion.