THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. NEMESIO L. AGPANGAN, DEFENDANT AND APPELLANT.

Appellant stands accused of treason, committed between December, 1944, and
January, 1945, in the Province of Laguna, on only one count alleged in the
information as follows:

“That on or about December 20, 1944, the accused, a member of the Ganap, a
subversive pro-Japanese organization, joined the Pampars, a military
organization supporting the Imperial Japanese Army and designed to bear arms
against the army of the United States and the Commonwealth of the Philippines
and the guerrillas in the Philippines; that he was equipped with a 1903
Springfield rifle, caliber 30, and was made to undergo 10 days training,
consisting of military drill, manual of arms, and target practice; and
that from or about January 12, 1945 to March 15, 1945, the said accused was
assigned to guard duty once a week; that he was armed with a rifle with orders
to shoot any of the Filipino prisoners whom he was guarding who might attempt to
escape and also any guerrilla or American soldier who might approach the
Japanese garrison.”

The lower court found him guilty and sentenced him to reclusion
perpetua, with the accessory penalties provided by law, and to pay a fine of
P10,000 and the costs.

Three witnesses testified for the prosecution.

Tomas C. Serrano, 46, farmer, resident of Siniloan, Second Lieutenant in the
Marking’s guerrilla organization, testified that in December, 1944, he saw the
accused in the Japanese garrison in Siniloan, “he was a member of the
Makapili organization;” “he was doing guard duty, with a rifle, with a
bayonet at his side;” “he was at the entrance of the garrison and he made all
civilians passing through the entrance bow to him.” If they did not bow, “he
dragged them by the arms and brought them to the captain of the garrison;” he
served as guard “since November, 1944, when the Japanese garrison was
established in Siniloan, up to the time I was arrested on March 25, 1945;” he
saw the accused on guard duty in the garrison “many times;” “I often saw him
confiscating foodstuffs such as rice, fruits, calabasa, and other
vegetables, for the support of the Japanese soldiers;” ” he was with arms
accompanied by Japanese soldiers and other members of the Makapili;” “I often
saw him accompanied by Japanese soldiers and other Makapili members,
arresting suspected guerrillas and sometimes they were patrolling or camping in
the hideouts of the guerrilla forces, I cannot tell how many times, but I often
saw him;” the witness was arrested on March 25, 1945, by Japanese soldiers and
Makapilis, with whom the accused was; “the next morning we, the thirteen
prisoners, were brought to the place where we were to be executed; but luckily
while we were on our way to the barrio, the American planes came roaring, so the
guards took cover;” “they were pulling the rope that tied us, and luckily I was
able to slip away because I was the second to the last man in the line, and the
rope was cut;” “I could not run fast because I was lame;” the rest were
executed, naming the following: “Alejandro Serrano, Custodio Adaro, Emilio
Javier, Peter Sardal, Elias Rodolfo, Ignacio Cavano, Beato Optis, Napoleon
Pagtakhan, Bienvenido Agapangan, and myself;” Miguel Palma “was in my
back to the last, so we two remained, and Pacifico (Adopina) remained untied”
because he was carrying food, and when the Japanese ran, “he escaped.” Asked to
explain how he knew about the lot of those who were executed, the witness said
that he went home when the town was liberated, and he visited the place “because
I know the place,” and when he reached the spot “I smelled very bad odor, and I
recognized the soil which swelled, so I said to myself that this is the place
where our son was buried;” “I went home and told the other parents of the
victims” about the spot; “the next month, about thirty days,” the witness and
the other parents requested the municipal authorities to be allowed to exhume
the bodies; when his son was being taken to the place of execution. “I had not
seen him that time;” the witness based his knowledge as to appellant’s being a
Makapili on Exhibit A and he saw him armed, guarding the Japanese
garrison, confiscating foodstuffs for the Japanese, and arresting guerrilla
suspects in the town; Bienvenido Agapangan, one of those who were executed by
the Japanese, “was the son” of appellant; “I cannot tell you whether he
(appellant) was reporting to his officers any guerrilla;” Angel Javier and
Custodio Adaro were arrested by a party of which the accused was a member, and
“I know because he was with them when they were arrested;” the witness does not
know whether the accused was present during the execution “because there was
nobody present; only God had witnessed the killing of those persons.”

Mauricio Adaro, 47, farmer, resident of Siniloan, testified that in December,
1944, he saw the accused in the Japanese garrison in Siniloan; “he was mounting
guard;” asked from what date to what date he saw him in the garrison, the
witness answered that “I cannot remember the month in 1944 because we used to go
out of Siniloan every time;” appellant “was getting food supplies from the
civilians and giving them to the Japanese;” “the accused and the Japanese
companions of his arrested my son (Custodio) in our house;” the witness was not
arrested, “because I was able to hide;” he saw defendant mounting guard in the
Japanese garrison “many times;” “more than ten times;” the garrison was located
“in the school building.”

Delfin Redor, 55, mayor of Siniloan, since 1937, testified that appellant
“has been my barrio lieutenant;” he belongs to Pampar Makapili and
Pampar and Makapili, “I believe are the same;” from December,
1944, to March, 1945, the witness saw the accused “in the Makapili
garrison, in the Siniloan plaza;” “I believe that he was a member of the
Makapili;” “Sometimes he was detailed as guard in front of the garrison
with arms and ammunitions—bayonet;” he saw him as such “many times;” the witness
was not a mayor during the Japanese occupation because “in 1944, March, I
escaped because, you know, I was wanted by the Japanese because I was also a
guerrilla; before that, “I was a mayor of the town;” “during December, 1944, up
to March, because, you know, I left the office, I was still in the town of
Siniloan collecting some supplies for the guerrillas;” after abandoning the
office of mayor, the witness “remained living in the poblacion of
Siniloan;” he “never stopped living in the poblacion;” “I had three times
seen the accused accompanied by the Japanese in raiding outside the
poblacion;” the accused commandeered foodstuffs “and took them to the
garrison for food;” “the Japanese garrison was in the Intermediate Building and
the Makapili garrison is in Baybay Academy, about one kilometer distant;”
the witness saw the accused “in Makapili garrison;” the witness was a captain of
the guerrillas and was arrested by the Japanese four times, and in those
occasions he did not see the accused in the garrison; the witness does not know
of anybody who had been pointed out by the accused to the Japanese and was
arrested by the same.

The Constitution provides that “in all criminal prosecutions the accused
shall be presumed to be innocent until the contrary is proved.” (Article II,
section 1 [17].) To overcome this constitutional presumption, the guilt of the
accused must be proved beyond all reasonable doubt. The evidence presented by
the prosecution in this case does not offer that degree of proof. None of the
several overt acts alleged in the information has been proved in accordance with
the two-witness rule provided in article 114 of the Revised Penal Code.

It is imputed to appellant, in the first place, that he is a member of the
Ganap, “a subversive pro-Japanese organization,” and “joined the
Pampar, a military organization supporting the Imperial Japanese Army and
designed to bear arms against the Army of the United States and the Commonwealth
of the Philippines and the guerrillas in the Philippines.” No witness has
testified that appellant is a member of the Ganap. Only one witness,
Redor, testified that appellant belonged to Pampar, but he did not
testify as to its nature.

The next allegation of the information is that appellant “was equipped with a
1903 Springfield rifle, caliber 30, and was made to undergo ten days training,
consisting of military drill, manual of arms, and target practice.” No evidence
has been presented in support of this allegation.

The third allegation against appellant is that “from or about January 12,
1945, to March 15, 1945, the said accused was assigned to guard duty once a
week.” The fourth and the last allegation is that “he was armed with a rifle
with orders to shoot any of the Filipino prisoners whom he was guarding who
might attempt to escape and also any guerrilla or American soldier who might
approach the Japanese garrison.” In connection with these two allegation, the
only thing that the prosecution attempted to prove is that appellant did guard
duty and was armed with a rifle. But the attempt does not meet the test under
the two-witness rule.

The first two witnesses for the prosecution testified that they had seen the
accused doing guard duty in the Japanese garrison in Siniloan “many times,” more
than “ten times,” but neither of them has mentioned any specific time, day and
hour. They were able to mention only years and months. There is no way of
concluding that the two witnesses testified about the same overt act. The “many
times” or more than “ten times” mentioned by them may refer either to two
different sets of moments, not one instant of one set coinciding with any one of
the other, or to only one and identical set of instances or, although referring
to two sets, some of the instances are the same in both. As there is no basis on
record upon which we may determine which, among the two alternatives, is the
correct one, the doubt must be decided by taking the first alternative, the one
compatible with the presumption of innocence stated in the fundamental law. The
case for the prosecution is further weakened by the fact that its first two
witnesses are contradicted by the third, who testified that appellant did guard
duty “many times,” more than “ten times,” in the Makapili garrison,
located in the Baybay Academy, one kilometer from the Intermediate School
building, where the Japanese garrison was located.

To meet the test under the two-witness rule, it is necessary that, at least,
two witnesses should testify as to the perpetration of the same treasonous overt
act, and the sameness must include not only identity of kind and nature of the
act, but as to the precise one which has actually been perpetrated. The
treasonous overt act of doing guard duty in the Japanese garrison on one
specific date cannot be identified with the doing of guard duty in the same
garrison in a different date. Both overt acts, although of the same nature and
character, are two distinct and inconfusable acts, independent of each other,
and either one, to serve as a ground for conviction of an accused for treason,
must be proved by two witnesses. That one witness should testify as to one, and
another as to the other, is not enough. Any number of witnesses may testify
against an accused for treason as to a long line of successive treasonous overt
acts; but notwithstanding the seriousness of the acts nor their number, not
until two witnesses, at least, shall have testified as to the perpetration of a
single but the same and precise overt act, can conviction be entertained.

In justice to appellant, we feel it necessary to state that our decision to
acquit him is not only based on the reasonable doubt we entertain as to his
guilt, because the prosecution has not satisfied the requirements of the
two-witness rule, but because we are rather inclined to believe his testimony to
the effect that a guerrilla member, Vicente Auxilio, was caught by the Japanese
in appellant’s house, tortured and, finally, killed. For said reason, appellant
was called by the Japanese, investigated, and then told to do some work in the
garrison, otherwise he would have the same fate that befell Vicente Auxilio. “To
save my life, I accepted the order and worked there,” he testified, adding: “The
Japanese, not being contented with my work, they got my carabao and on March,
1945, they got my son, who was tortured and killed.”

This son is the same Bienvenido Agpangan who, according to the first witness
for the prosecution, was executed by the Japanese with several other victims. We
do not believe that appellant could have adhered to the Japanese, the same who
tortured and killed his own son. We do not believe that, in the absence of
proof, he can be such a monster.

The decision of the People’s Court is reversed and appellant is acquitted. He
shall be released from the custody of the agents of the law upon the
promulgation of this decision.

Moran, C.J., Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason,
JJ., concur.

PARAS, J.:

I concur in the result.

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FERIA, J.:

The information filed against the appellant with the People’s Court contains
only one count to wit:

“That on or about December 20, 1944, the accused, a member of the Ganap, a
subversive pro-Japanese organization, joined the Pampars, a military
organization supporting the Imperial Japanese Army and designed to bear arms
against the army of the United States and the Commonwealth of the Philippines
and the guerrillas in the Philippines; that he was equipped with a 1903
Springfield rifle, caliber 30, and was made to undergo 10 days training,
consisting of military drill, manual of arms, and target practice; and
that from or about January 12, 1945 to March 15, 1945, the said accused was
assigned to guard duty once a week; that he was armed with a rifle with orders
to shoot any of the Filipino prisoners whom he was guarding who might attempt to
escape and also any guerrilla or American soldier who might approach the
Japanese garrison.”

From the above it clearly appears that defendant is charged with having
committed only one overt act, that is, with having joined or become an active
member of the Pampars, “a military organization supporting the Imperial Japanese
army and designed to bear arms against the army of the United States and the
guerrillas in the Philippines.” The allegations “that he was equipped with a
1903 Springfield rifle, caliber .30, and was made to undergo 10 days training
consisting of military drill, manual of arms, and target practice,” and that
“from January 12, 1945 to March 15, 1945, the said accused was assigned to guard
duty once a week,” do not constitute two overt acts separate and independent
from the treasonous or over act of joining and becoming an active
member of said military organization named Pampars. Each one of those facts is a
part and parcel of said treasonous act, since by becoming an active member or
soldier of said military organization, the appellant must have necessarily been
armed, undergone training and done guard duty.

In the case of People vs. Alarcon, G. R. No. L-407,^[1] already decided by this Court the defendant
appellant Alarcon was charged with the crime of treason consisting, according to
the information, of several overt acts alleged separately in several counts. In
the first count he was charged with having joined and acted as a member of the
pro-Japanese military organization named Makapili; and in the fourth with
having retreated in December 1944 with the Japanese forces towards Bongabong,
Nueva Ecija, before the arrival of the American forces in Cabanatuan. This Court
in a decision unanimously concurred in by all the members who voted, including
the Justice who pens the decision of the majority in this case, held that “the
acts alleged in the fourth count constitute only a part of the overt act charged
in the first count, since the appellant, as one of the members of said
Makapili organization, had to retreat with the Japanese soldiers and
other Makapilis to the mountains.”

In view of the foregoing, it is plain that the following fundamental
conclusion in the majority decision is erroneous and misleading. The conclusion
says: “The treasonous overt act of doing guard duty in the Japanese garrison on
one specific date can not be identified with the doing of guard duty in the same
garrison on a different date. Both overt acts, although of the same
nature and character, are two distinct and inconfusable acts
independent of each other, and either one, to serve as a ground for
conviction of an accused for treason, must be proved by two witnesses.” We
say that it is erroneous and misleading, because the mere act of doing guard
duty in a Japanese garrison, independent from that of being a member of the
Japanese Army or a military organization of Filipino civilians and allied with
the Japanese forces, does not of itself constitute an overt act. Doing guard
duty in a Japanese garrison on a specific date, and standing guard in the same
or another Japanese garrison on a different date, are but parts or bits of the
continuous treasonous act of being an active member of such organization.
The mere acceptance of a commission in a traitorous army is not sufficient to
constitute overt act of treason. To be so, there must be at least an attempt to
act as such. (U.S. vs. Manalo, 6 Phil., 364; U.S. vs. Villariño,
5 Phil., 697; U.S. vs. De los Reyes, 3 Phil., 349; U.S. vs.
Magtibay, 2 Phil., 703.)

In view of the failure on the part of the
prosecution to establish the treasonous overt act, and of each part or bit
thereof charged in the information against the appellant, by the testimony of at
least two witnesses, the decision of the People’s Court appealed from is
reversed and the appellant acquitted. So ordered.

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^[1] 78 Phil., 732.