TEODORO GABOR Y ORO, PETITIONER, VS. THE DIRECTOR OF PRISONS, RESPONDENT.

This is a petition for habeas corpus filed by Teodoro Gabor y Oro, who alleges therein, among others, the following:

That on December 2, 1940, ha was convicted by the Court of First Instance of Maasin, Leyte, in Criminal Case No. 5268:

(a) For homicide; From 2 years, 4 months and 1 day of prision correccional, to 8 years and 1 day of prision mayor, to pay an indemnity of P2,000, with subsidiary imprisonment in case of insolvency, and costs.

(b) For frustarated parricide: 8 years of prision mayor, to accessories of the law, and costs.

That he began to serve his sentence on December 2, 1940, and was granted a reduction of one-fifth of his sentence for loyalty.

That “taking into account the maximum good conduct time allowances,
and other credits, to which the petitioner is entitled under Acts Nos.
2489 and 3815, he has fully and completely served out his principal
penalties in the two criminal cases in which he had been convicted with
only the subsidiary, imprisonment corresponding to the indemnity of
P2,000, which the petitioner is unable to satisfy in kind, remaining to
be served.”

That he is being illegally and unlawfully restrained, imprisoned
and deprived of liberty by the respondent; and the illegality and
nullity of the petitioner’s present confinement lies in the fact that
he is being held and detained to serve the subsidiary imprisonment
imposed upon him with the principal penalty in the homicide case, such
imposition being contrary to law and so imposed with grave abuse of
discretion and without jurisdiction on the part of the Honorable Trial
Court, inasmuch as Section 3, Article 39, of the Revised Penal Code,
expressly provides ‘When the principal penalty imposed is higher than prision correccional, no subsidiary imprisonment shall be imposed upon the culprit.’ “

The respondent in his return, which must be considered as prima facie evidence according to section 13, Rule 102, Rules of Court, evidence not contradicted by the petitioner, shows the following:

That by excluding the subsidiary imprisonment, the petitioner is subject to the following penal sentence:

(a) For the homicide:

A minimum of 2 years, 4 months and 1 day and a maximum of 8 years and 1 day.

(b) For the frustrated parricide:

A definite sentence of 8 years.

5. That
   by authority of the Japanese Commander in Chief in Palawan (Annex 3
   hereto attached), the Superintendent of the Iwahig Penal Colony on June
   4, 1942, reduced by one-fifth the sentences imposed on the petitioner
   (Annexes 4-A, hereto attached) and said sentences as reduced became as
   follows:

(a) For the Homicide:

Minimum—1 year, 10 months and 13 days
Maximum—6 year, 4 months and 25 days

(b) For the frustrated Homicide:

Definite—6 years, 4 months and 24 days

That with good conduct time allowance his minimum sentence expired
on December 2, 1942, his maximum expired on .April 26, 1947, and both
his minimum and definite sentence will expire on January 20, 1953.

And that conceding further time allowance to the petitioner by
reason of his having qualified as a trusty or penal colonist beginning
October 15, 1943, it results that on said date he had already served
his minimum sentence, and his maximum sentence expired on December 5,
1946, and both his maximum and definite sentences will expire on
February 17, 1952.

The petitioner takes it for granted that the reduction of one-fifth
of his sentence for loyalty was made in accordance with law, and
contends that the sentence he is now serving is for subsidiary
imprisonment, which is null and void, according to the petitioner;
because the principal penalty imposed by the court in the case for
homicide is prison mayor which is higher than prision correccional, and Sec. 3, Article 57, of the Revised Penal Code, provides that “when the principal penalty imposed is higher than prision correccional no subsidiary imprisonment shall be imposed upon the culprit.”

On the other hand the respondent admits that the subsidiary penalty
imposed upon the petitioner in the above mentioned case is null and
void, and for that reason the petitioner has not been made to serve
said penalty; but contends that the reduction of one fifth of the
petitioner’s sentence by the Superintendent of the Iwahig Penal Colony
on June 4, 1942, is null and void. Because the reduction was made not
in accordance with the provisions of Articles 98, 99 and 158 of the
Revised Penal Code, but under the authority given by the Japanese
Commander-in-Chief in Palawan to said Superintendent to grant pardon,
parole or reduction of the inmates’ sentences who have shown excellent
conduct of loyalty and devotion to duty. And. the respondent argues
that the Japanese Commander-in-Chief of the Japanese forces in Palawan
had no power to authorize the Superintendent of the Iwahig Penal Colony
to make such reduction because a military occupant is enjoined to
respect the municipal laws prevailing in the occupied territory.

The authority granted upon the Superintendent of the Iwahig Penal
Colony by the Commander-in-Chief of the Imperial Japanese landing
forces in Palawan, did not repeal or modify .Articles 98, 99 and 158 of
the Revised Penal Code, because it was applicable only to the inmates
of said colony. It was rather a delegation to the Superintendent of the
power or authority to pardon or parole, since reduction of a prisoner’s
sentence is a partial pardon. The question in issue in the present case
is whether the Commander-in-Chief of the Imperial landing forces in
Palawan had power to pardon the petitioner’s sentence imposed by the
civil courts of the Philippine Government in that penal colony.

We have already ruled in the cases of Sameth vs. Director of Prisons, (43 Of. Gaz. pp. 146, 150; 76 Phil., 613); Caraos vs. Daza (43 Off. Gaz., p. 462; 76 Phil., 681), and Botuyan, vs.
The Director of Prisons, G.R. No. L-2240, promulgated June 26, 1948,
that the only competent authorities having the power to pardon during
the Japanese occupation, were the Commander-in-Chief of the Imperial
Japanese military forces and the President of the so-called Republic of
the Philippines, and consequently the Commander-in-Chief of the
‘landing Japanese forces in Palawan had no power to authorize the
pardon or reduction of the sentence of the petitioner.

In view of the foregoing, the petition for habeas corpus is denied. So ordered.

Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo, and Bautista Angelo, JJ., concur.