150279273 criminal-law-1-cases

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-43530 August 3, 1935
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
AURELIO LAMAHANG, defendant-appellant.
Honesto K. Bausa for appellant.
Office of the Solicitor-General Hilado for appellee.

RECTO, J.:
The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First
Instance of Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and
four months of prision correccional and to an additional penalty of ten years and one day of prision
mayor for being an habitual delinquent, with the accessory penalties of the law, and to pay the costs
of the proceeding.
At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on
Delgado and C.R. Fuentes streets of the City of Iloilo, caught the accused in the act of making an
opening with an iron bar on the wall of a store of cheap goods located on the last named street. At
that time the owner of the store, Tan Yu, was sleeping inside with another Chinaman. The accused
had only succeeded in breaking one board and in unfastening another from the wall, when the
policeman showed up, who instantly arrested him and placed him under custody.
The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the
trial judge and the Solicitor-General, as constituting attempted robbery, which we think is erroneous.
It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which
has a logical relation to a particular, concrete offense; that, which is the beginning of the execution of
the offense by overt acts of the perpetrator, leading directly to its realization and consummation. The
attempt to commit an indeterminate offense, inasmuch as its nature in relation to its objective is
ambiguous, is not a juridical fact from the standpoint of the Penal Code. There is no doubt that in the
case at bar it was the intention of the accused to enter Tan Yu's store by means of violence, passing
through the opening which he had started to make on the wall, in order to commit an offense which,
due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively
performed constitute a mere beginning of execution; it is necessary to establish its unavoidable
connection, like the logical and natural relation of the cause and its effect, with the deed which, upon
its consummation, will develop into one of the offenses defined and punished by the Code; it is
necessary to prove that said beginning of execution, if carried to its complete termination following
its natural course, without being frustrated by external obstacles nor by the voluntary desistance of
the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery,
in order that the simple act of entering by means of force or violence another person's dwelling may
be considered an attempt to commit this offense, it must be shown that the offender clearly intended
to take possession, for the purpose of gain, of some personal property belonging to another. In the
instant case, there is nothing in the record from which such purpose of the accused may reasonably
be inferred. From the fact established and stated in the decision, that the accused on the day in
question was making an opening by means of an iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident intention was to enter by means of force said
store against the will of its owner. That his final objective, once he succeeded in entering the store,
was to rob, to cause physical injury to the inmates, or to commit any other offense, there is nothing
in the record to justify a concrete finding.1avvphil. ñet
It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the
material damage is wanting, the nature of the action intended (accion fin) cannot exactly be
ascertained, but the same must be inferred from the nature of the acts executed (accion
medio). Hence, the necessity that these acts be such that by their very nature, by the facts to
which they are related, by the circumstances of the persons performing the same, and by the
things connected therewith, they must show without any doubt, that they are aimed at the
consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well
as against the culprit, and which show an innocent as well as a punishable act, must not and

can not furnish grounds by themselves for attempted nor frustrated crimes. The relation
existing between the facts submitted for appreciation and the offense which said facts are
supposed to produce must be direct; the intention must be ascertained from the facts and
therefore it is necessary, in order to avoid regrettable instances of injustice, that the mind be
able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to
exist, the offender must commence the commission of the felony directly by overt acts, that is
to say, that the acts performed must be such that, without the intent to commit an offense,
they would be meaningless.
Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the
commission of the offense, are not punished except when they are aimed directly to its execution,
and therefore they must have an immediate and necessary relation to the offense."
Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in
order to declare that such and such overt acts constitute an attempted offense it is necessary
that their objective be known and established, or that said acts be of such nature that they
themselves should obviously disclose the criminal objective necessarily intended, said
objective and finality to serve as ground for the designation of the offense: . . . .
In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does
not constitute attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales,
59 Phil., 606, and decisions of the Supreme Court of Spain therein cited). Under article 280 of the
Revised Penal Code, this offense is committed when a private person shall enter the dwelling of
another against the latter's will. The accused may be convicted and sentenced for an attempt to
commit this offense in accordance with the evidence and the following allegation contained in the
information: "... the accused armed with an iron bar forced the wall of said store by breaking a board
and unfastening another for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who
upon hearing the noise produced by the breaking of the wall, promptly approached the accused ... ."
Under the circumstances of this case the prohibition of the owner or inmate is presumed. (U.S. vs.
Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509' U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21
Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25 Phil., 292.) Against the accused
must be taken into consideration the aggravating circumstances of nighttime and former convictions,
— inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The
breaking of the wall should not be taken into consideration as an aggravating circumstance
inasmuch as this is the very fact which in this case constitutes the offense of attempted trespass to
dwelling.
The penalty provided by the Revised Penal Code for the consummated offense of trespass to
dwelling, if committed with force, is prision correccional in its medium and maximum periods and a
fine not exceeding P1,000 (art. 280, par. 2); therefore the penalty corresponding to attempted
trespass to dwelling is to degrees lower (art. 51), or, arresto mayor in its minimum and medium
periods. Because of the presence of two aggravating circumstances and one mitigating
circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive imprisonment.
Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of
attempted trespass to dwelling, committed by means of force, with the aforesaid aggravating and
mitigating circumstances and sentenced to three months and one day of arresto mayor, with the
accessory penalties thereof and to pay the costs.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.
SUPREME COURT
Manila
EN BANC
G.R. No. 129433 March 30, 2000
PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
BELLOSILLO, J.:
On 3 April 1990 this Court in People v. Orita 1
finally did away with frustrated rape 2
and allowed only
attempted rape and consummated rape to remain in our statute books. The instant case lurks at the
threshold of another emasculation of the stages of execution of rape by considering almost every
attempt at sexual violation of a woman as consummated rape, that is, if the contrary view were to be
adopted. The danger there is that that concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since
after all any attempted fornication would be considered consummated rape and punished as such. A
mere strafing of the citadel of passion would then be considered a deadly fait accompli, which is
absurd.
In Orita we held that rape was consummated from the moment the offender had carnal knowledge of
the victim since by it he attained his objective. All the elements of the offense were already present
and nothing more was left for the offender to do, having performed all the acts necessary to produce
the crime and accomplish it. We ruled then that perfect penetration was not essential; any
penetration of the female organ by the male organ, however slight, was sufficient. The Court further
held that entry of the labia or lips of the female organ, even without rupture of the hymen or
laceration of the vagina, was sufficient to warrant conviction for consummated rape. We
distinguished consummated rape from attempted rape where there was no penetration of the female
organ because not all acts of execution were performed as the offender merely commenced the
commission of a felony directly by overt acts. 3
The inference that may be derived therefrom is that
complete or full penetration of the vagina is not required for rape to be consummated. Any
penetration, in whatever degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or
lips of the female organ, even if there be no rupture of the hymen or laceration of the vagina, to
warrant a conviction for consummated rape. While the entry of the penis into the lips of the female
organ was considered synonymous with mere touching of the external genitalia, e.g., labia majora,
labia minora, etc.,4
the crucial doctrinal bottom line is that touching must be inextricably viewed in
light of, in relation to, or as an essential part of, the process of penile penetration, and not just mere
touching in the ordinary sense. In other words, the touching must be tacked to the penetration itself.
The importance of the requirement of penetration, however slight, cannot be gainsaid because
where entry into the labia or the lips of the female genitalia has not been established, the crime
committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has been committed
either in its attempted or in its consummated stage; otherwise, no substantial distinction would exist

between the two, despite the fact that penalty-wise, this distinction, threadbare as it may seem,
irrevocably spells the difference between life and death for the accused — a reclusive life that is not
even perpetua but only temporal on one hand, and the ultimate extermination of life on the other.
And, arguing on another level, if the case at bar cannot be deemed attempted but consummated
rape, what then would constitute attempted rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted rape would no longer be possible in
light of the view of those who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the
court a quo to the extreme penalty of death, 5
hence this case before us on automatic review under
Art. 335 of the Revised Penal Code as amended by RA 7659. 6
As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the
afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel Pamintuan, went down
from the second floor of their house to prepare Milo chocolate drinks for her two (2) children. At the
ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be
frozen into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr.,
brother of Corazon. As Corazon was busy preparing the drinks, she heard one of her daughters cry,
"Ayo'ko, ayo'ko!" 7
prompting Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside
her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were
already removed, while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the
accused, "P - t - ng ina mo, anak ko iyan!" and boxed him several times. He evaded her blows and
pulled up his pants. He pushed Corazon aside when she tried to block his path. Corazon then ran
out and shouted for help thus prompting her brother, a cousin and an uncle who were living within
their compound, to chase the accused. 8
Seconds later, Primo was apprehended by those who
answered Corazon's call for help. They held the accused at the back of their compound until they
were advised by their neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital
physical injury was noted by the medico-legal officer on Crysthel's body as her hymen was intact and
its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and
assailed the charge as a mere scheme of Crysthel's mother who allegedly harbored ill will against
him for his refusal to run an errand for her. 9 He asserted that in truth Crysthel was in a playing mood
and wanted to ride on his back when she suddenly pulled him down causing both of them to fall
down on the floor. It was in this fallen position that Corazon chanced upon them and became
hysterical. Corazon slapped him and accused him of raping her child. He got mad but restrained
himself from hitting back when he realized she was a woman. Corazon called for help from her
brothers to stop him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente
punched him and threatened to kill him. Upon hearing the threat, Primo immediately ran towards the
house of Conrado Plata but Vicente followed him there. Primo pleaded for a chance to explain as he
reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw
Vicente holding a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow.
At this moment, the relatives and neighbors of Vicente prevailed upon him to take Primo to the
barangay hall instead, and not to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty
of statutory rape, sentenced him to the extreme penalty of death, and ordered him to pay his victim
P50,000.00 for moral damages, P25,000.00 for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He
argues that her narration should not be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with human nature and experience. He
claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger
sister was also in the room playing while Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and the fact that the episode happened
within the family compound where a call for assistance could easily be heard and responded to,
would have been enough to deter him from committing the crime. Besides, the door of the room was
wide open for anybody to see what could be taking place inside. Primo insists that it was almost
inconceivable that Corazon could give such a vivid description of the alleged sexual contact when
from where she stood she could not have possibly seen the alleged touching of the sexual organs of
the accused and his victim. He asserts that the absence of any external signs of physical injuries or
of penetration of Crysthel's private parts more than bolsters his innocence.
In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she
saw Primo with his short pants down to his knees kneeling before Crysthel whose pajamas and
panty were supposedly "already removed" and that Primo was "forcing his penis into Crysthel's
vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below
twelve (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4)
years old when sexually molested, thus raising the penalty, from reclusion perpetua to death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party being below seven (7)
years old. We have said often enough that in concluding that carnal knowledge took place, full
penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen
necessary; the mere touching of the external genitalia by the penis capable of consummating the
sexual act is sufficient to constitute carnal knowledge. 10
But the act of touching should be
understood here as inherently part of the entry of the penis into the labias of the female organ and
not mere touching alone of the mons pubis or the pudendum.
In People v. De la Peña 11
we clarified that the decisions finding a case for rape even if the attacker's
penis merely touched the external portions of the female genitalia were made in the context of the
presence or existence of an erect penis capable of full penetration. Where the accused failed to
achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit into the
victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's
testimony that the accused repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her vulva, 12
or
that the penis of the accused touched the middle part of her vagina. 13
Thus, touching when applied
to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight
brush or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in
this case. There must be sufficient and convincing proof that the penis indeed touched the labias or
slid into the female organ, and not merely stroked the external surface thereof, for an accused to be
convicted of consummated rape. 14
As the labias, which are required to be "touched" by the penis,
are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion
that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female genital organs that are visible in the
perineal area,e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice,
etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly
visible within the surface. The next layer is the labia majora or the outer lips of the female organ

composed of the outer convex surface and the inner surface. The skin of the outer convex surface is
covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not
have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia
minora. 15
Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, 16
and not merely for the penis to stroke the surface of the female organ. Thus, a
grazing of the surface of the female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the
female organ, i.e., touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the
female organ," 17
but has also progressed into being described as "the introduction of the male organ
into the labia of the pudendum," 18
or "the bombardment of the drawbridge." 19
But, to our mild, the
case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier stated, a
"strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of
proving that Primo's penis was able to penetrate Crysthel's vagina however slight. Even if we
grant arguendo that Corazon witnessed Primo in the act of sexually molesting her daughter, we
seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and
Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying
that she saw Primo poking his penis on the vagina of Crysthel without explaining her relative position
to them as to enable her to see clearly and sufficiently, in automotive lingo, the contact point. It
should be recalled that when Corazon chanced upon Primo and Crysthel, the former was allegedly
in a kneeling position, which Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of the accused is pinning down
the victim, while his right hand is holding his penis and his left hand is spreading the legs of
the victim).
It can reasonably be drawn from the foregoing narration that Primo's kneeling position rendered an
unbridled observation impossible. Not even a vantage point from the side of the accused and the
victim would have provided Corazon an unobstructed view of Primo's penis supposedly reaching
Crysthel's external genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs and
arms of Primo would have hidden his movements from Corazon's sight, not to discount the fact that
Primo's right hand was allegedly holding his penis thereby blocking it from Corazon's view. It is the
burden of the prosecution to establish how Corazon could have seen the sexual contact and to
shove her account into the permissive sphere of credibility. It is not enough that she claims that she
saw what was done to her daughter. It is required that her claim be properly demonstrated to inspire
belief. The prosecution failed in this respect, thus we cannot conclude without any taint of serious
doubt that inter-genital contact was at all achieved. To hold otherwise would be to resolve the doubt
in favor of the prosecution but to run roughshod over the constitutional right of the accused to be
presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her
timely appearance, thus giving her the opportunity to fully witness his beastly act.
We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is
and persist in satisfying his lust even when he knows fully well that his dastardly acts have already
been discovered or witnessed by no less than the mother of his victim. For, the normal behavior or

reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval, although relatively short, provided more than
enough opportunity for Primo not only to desist from but even to conceal his evil design.
What appears to be the basis of the conviction of the accused was Crysthel's answer to the question
of the court —
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that enshrouds the question of whether
rape in this case was consummated. It has foreclosed the possibility of Primo's penis penetrating her
vagina, however slight. Crysthel made a categorical statement denying penetration, 27
obviously
induced by a question propounded to her who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a
four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex and whose language
is bereft of worldly sophistication, an adult interpretation that because the penis of the accused
touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the
victim's organ the penis of the accused touched the middle portion of her vagina and entered the
labia of her pudendum as the prosecution failed to establish sufficiently that Primo made efforts to
penetrate Crysthel. 22
Corazon did not say, nay, not even hint that Primo's penis was erect or that he
responded with an erection. 23
On the contrary, Corazon even narrated that Primo had to hold his
penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate
his victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the
child's own assertion that she resisted Primo's advances by putting her legs close
together; 24
consequently, she did not feel any intense pain but just felt "not happy" about what Primo
did to her. 25
Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where
penetration was not fully established, the Court had anchored its conclusion that rape nevertheless
was consummated on the victim's testimony that she felt pain, or the medico-legal finding of
discoloration in the inner lips of the vagina, or the labia minora was already gaping with redness, or
the hymenal tags were no longer visible. 26
None was shown in this case. Although a child's
testimony must be received with due consideration on account of her tender age, the Court
endeavors at the same time to harness only what in her story appears to be true, acutely aware of
the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis of
the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be
sentenced to death.1âwphi1
Lastly, it is pertinent to mention the medico legal officer's finding in this case that there were no
external signs of physical injuries on complaining witness' body to conclude from a medical
perspective that penetration had taken place. As Dr. Aurea P. Villena explained, although the
absence of complete penetration of the hymen does not negate the possibility of contact, she
clarified that there was no medical basis to hold that there was sexual contact between the accused
and the victim. 27

In cases of rape where there is a positive testimony and a medical certificate, both should in all
respects complement each other; otherwise, to rely on the testimonial evidence alone, in utter
disregard of the manifest variance in the medical certificate, would be productive of unwarranted or
even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in
reality entered the labial threshold of the female organ to accurately conclude that rape was
consummated. Failing in this, the thin line that separates attempted rape from consummated rape
will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender
commences the commission of rape directly by overt acts, and does not perform all the acts of
execution which should produce the crime of rape by reason of some cause or accident other than
his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape
— are present in the instant case, hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the
offense charged, which is statutory rape of a minor below seven (7) years. Two (2) degrees lower
is reclusion temporal, the range of which is twelve (12) years and one (1) day to twenty (20) years.
Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the
medium period of reclusion temporal, the range of which is fourteen (14) years, eight (8) months and
(1) day to seventeen (17) years and four (4) months, while the minimum shall be taken from the
penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and one
(1) day to twelve (12) years, in any of its periods.
WHEREFORE, the Decision of the court a quo finding accused PRIMO "SONNY" CAMPUHAN Y
BELLO guilty of statutory rape and sentencing him to death and to pay damages is MODIFIED. He is
instead found guilty of ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight
(8) years four (4) months and ten (10) days of prision mayor medium as minimum, to fourteen (14)
years ten (10) months and twenty (20) days ofreclusion temporal medium as maximum. Costs de
oficio.
SO ORDERED.1âwphi1. nêt
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena,
Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Pnganiban, J., in the result.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181492 December 16, 2008
THE PEOPLE OF THE PHILIPPINES, appellee,
vs.
SAMUEL OBMIRANIS y ORETA, appellant.
D E C I S I O N

TINGA, J.:
This is an appeal filed by Samuel Obmiranis y Oreta (appellant) who was charged with violation of
Section 5 in relation to Section 26 of Republic Act (R.A.) No. 9165.1
He was allegedly caught in a
buy-bust operation by elements of the Manila Western Police District (MWPD) while offering to sell
methylamphetamine hydrochloride, a dangerous drug locally known as shabu. The criminal
information filed with the Regional Trial Court (RTC) of Manila, Branch 22
accused him as follows:
That on or about May 18, 2004, in the City of Manila, Philippines, the said accused, not
having been authorized by law to sell, trade, deliver or give away to another any dangerous
drug, did then and there willfully, unlawfully and knowingly attempt to sell or offer for sale one
(1) transparent plastic sachet containing TWO POINT EIGHT ZERO ZERO (2.800) grams of
white crystalline substance known as "SHABU" containing methylamphetamine
hydrochloride, a dangerous drug.
Contrary to law.3
At the pre-trial, both the prosecution and the defense stipulated on the qualification of Forensic
Chemist Elisa Reyes and, thus, both parties dispensed with her testimony. The prosecution further
admitted that the forensic chemist who analyzed the seized the confiscated substance-which yielded
positive for methylamphetamine hydrochloride content-did not have personal knowledge of the
ultimate source of the drug.4
Appellant was brought to trial after having entered a negative plea.5
The prosecution then proceeded
to prove the charge against him through the lone testimony of police officer Jerry Velasco (Velasco).
Velasco was the alleged leader of the raiding team that apprehended appellant on 18 May 2004 at
the corner of G.Tuazon and Jhocson Streets in Sampaloc, Manila.6
The narrative woven by Velasco established the following facts: On 17 May 2004, Police
Superintendent Marcelino Pedrozo (Pedrozo) of the MWPD organized a buy-bust team on the
information of a confidential informant that the latter was able to place an order for half a "bulto"
of shabu with appellant. Velasco was designated as the team leader and the poseur-buyer, with
Police Officers Wilfredo Cinco, Edgardo Palabay, Roberto Benitez and one7
confidential informant as
members.8
Pedrozo gave the team a marked 500-peso bill to be used as buy-bust money which was
placed on top of a deck of boodle money. The team informed the Philippine Drug Enforcement
Agency (PDEA) of the impending operation,9
entered the same in the blotter10
and proceeded to
Bambang in G.Tuazon Street just before 12 a.m. of 18 May 2004-the appointed time and date that
the confidential informant and appellant had agreed to meet. The informant joined Velasco in his car,
and they awaited the arrival of appellant at the corner of G.Tuazon and Jhocson Streets.11
At around
12:30 a.m., appellant on board a car arrived at the scene and seeing the informant he approached
the latter. The informant introduced Velasco to appellant and said that Velasco would like to buy
one-half "bulto" of shabu. Velasco negotiated with appellant to lower the price but the latter refused.
Velasco then insisted that he must first see the merchandise. Appellant went back to his car, took
the item and brought it to Velasco. Velasco readily recognized the item as a plastic sachet
containing a white crystalline substance. When appellant asked for payment, he seemed to have
recognized Velasco's co-officer because he uttered the words, "May pulis yata." At that point, he was
arrested just as he was trying to get back to his car.12
According to Velasco, he was the one who effected the arrest but it was Cinco who seized the
plastic sachet from appellant. He further stated that immediately after the arrest, he and his team
brought the seized item to the police headquarters and there, in his presence, Cinco marked the
same with the initials "SOO." At the trial, he identified the plastic sachet as that seized from appellant

as well as the marking made by Cinco on it. Furthermore, he admitted on cross-examination that
there was no evidence custodian designated and that he could not remember if the seized item had
been inventoried and photographed in the presence of the accused; that Cinco put the item in his
pocket after the same was recovered and did not mark it on the spot and that the markings made on
the buy-bust money had not been entered in the blotter.13
The chemistry report issued at the instance of Pedrozo and signed by Forensic Chemical Officer
Maritess Mariano of the PNP Crime Laboratory revealed that the specimen supposedly seized from
appellant yielded positive of methylamphetamine hydrochloride content.14
Taking the stand, appellant boldly asserted that he was merely framed up by the buy-bust team, and
strongly denied having transacted the alleged sale of shabu with Velasco and the confidential
informant. He claimed that he was taken by Velasco and his team not on 18 May 2004 but rather on
17 May 2004 at 7:00 p.m. along Santa Teresita Street, Sampaloc, Manila;15
that he was there to see
his girlfriend who was residing in that area; that when he was arrested by two men in civilian clothes,
he was not committing any crime; that he asked them why they were arresting him but neither of
them gave an answer and instead one of them grabbed him by his shoulder and ushered him inside
a police car; that once inside the car, one of the men pulled out a gun with which he hit his neck,
kicked him and uttered, "Makulit ka ha, yuko!"; that he asked them why they were doing that to him
when in fact he merely told them to park their car properly on the street; that they cuffed his hands at
the back and the driver, Velasco, asked if he could give them P200,000.00; that he answered he did
not have that much money; that they drove the car around and told him that if he could not give them
the money then he must just find for them someone who sells drugs in large-scale ("Magturo ka ng
nagbebenta ng droga, iyong malakihan ha!"); that because he said he did not know anyone who was
into selling drugs, he was taken to the U.N. Avenue police headquarters; that he was not detained at
the headquarters but rather, he was brought to the second floor where the two arresting officers
demanded P50,000.00 from him; that the demand was then reduced to P30,000.00 in exchange for
the mitigation of his case.16
Olivia Ismael, another defense witness who introduced herself as a
friend of appellant's girlfriend and who admitted having witnessed appellant's arrest, corroborated
the material points of appellant's testimony.17
In its 23 February 2006 Decision, the RTC found appellant guilty beyond reasonable doubt of the
offense charged. He was sentenced to suffer the penalty of life imprisonment, and to pay
a P500,000.00 fine without subsidiary imprisonment as well as the costs.18
Appellant interposed an appeal with the Court of Appeals in which he reiterated that the prosecution
was unable to establish his guilt beyond reasonable doubt in view of the failure to establish the chain
of custody of the illegal drugs and that it was likewise unable to establish the consummation of the
alleged sale of drugs.19 For its part, the People, through the Office of the Solicitor General (OSG),
posited that the fact that all the essential elements of a consummated sale of dangerous drug had
not been completely shown was immaterial because the charge involved a mere attempt or offer to
sell which had been duly established by the prosecution.20
It also maintained that the chain of
custody of the seized shabu had been duly established because the requirements in taking custody
of seized narcotics provided for in Dangerous Drugs Board Regulation No. 1, series of 200221 admit
of liberal interpretation.22
In its 4 September 2007 Decision,23
the Court of Appeals affirmed in toto the trial court's decision.
Appellant's Notice of Appeal24
was approved, and the records of the case were elevated to this
Court. This Court's 24 March 2008 Resolution25
allowed the parties to file their supplemental briefs,
but only appellant complied; the OSG manifested instead that there was no need for its part to file a
supplemental brief as the merits of the case had already been extensively discussed in its brief
before the appellate court.26

The appeal has to be granted.
In criminal prosecutions, fundamental is the requirement that the elemental acts constituting the
offense be established with moral certainty as this is the critical and only requisite to a finding of
guilt. In prosecutions involving narcotics, the narcotic substance itself constitutes the corpus delicti of
the offense and the fact of its existence is vital to sustain a judgment of conviction beyond
reasonable doubt.27
It is therefore of prime importance that in these cases, the identity of the
dangerous drug be likewise established beyond reasonable doubt.28
In other words, it must be
established with unwavering exactitude that the dangerous drug presented in court as evidence
against the accused is the same as that seized from him in the first place. The chain of custody
requirement performs this function in that it ensures that unnecessary doubts concerning the identity
of the evidence are removed.29
Board Regulation No. 1, series of 2002 defines chain of custody as "the duly recorded authorized
movements and custody of seized drugs or controlled chemicals or plant sources of dangerous
drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court for destruction." As a method of
authenticating evidence, the chain of custody rule requires that the admission of the exhibit be
preceded by evidence sufficient to
support a finding that the matter in question is what the proponent claims it to be.30
It would thus
include testimony about every link in the chain, from the moment the item was seized to the time it is
offered in court as evidence, such that every person who handled the same would admit how and
from whom it was received, where it was and what happened to it while in the witness' possession,
the condition in which it was received and the condition in which it was delivered to the next link in
the chain. The same witnesses would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for someone not in the chain to have
possession of the same.31
It is from the testimony of every witness who handled the evidence from
which a reliable assurance can be derived that the evidence presented in court is one and the same
as that seized from the accused.
The prosecution evidence in the case at bar, however, does not suffice to afford such assurance. Of
all the people who came into direct contact with the sachet of shabu purportedly seized from
appellant, only Velasco was able to observe the uniqueness thereof in court. Cinco, who, according
to Velasco, took initial custody of the plastic sachet at the time of arrest and who allegedly marked
the same with the initials "SOO" at the police station, was not even presented in court to directly
observe the uniqueness of the specimen and, more importantly, to acknowledge the marking as his
own. The same is true with respect to the laboratory personnel who could have but nevertheless
failed to testify on the circumstances under which he received the specimen at the laboratory for
analysis and testing, as well as on the conduct of the examination which was administered on the
specimen and what he did with it at the time it was in his possession and custody. Aside from that, it
was not reasonably explained why these same witnesses were not able to testify in court. While
indeed the prosecution and the defense had stipulated on the qualification of the forensic chemist,
dispensed with his testimony and admitted that said forensic chemist had no personal knowledge of
the ultimate source of the drug submitted for examination, nevertheless, these stipulations and
admission pertain only to a certain Elisa G. Reyes and not to Forensic Chemical Officer Maritess
Mariano who, based on the chemistry report, was the one who examined the contents of the plastic
sachet at the crime laboratory.
In view of these loopholes in the evidence adduced against appellant, it can be reasonably
concluded that the prosecution was unable to establish the identity of the dangerous drug and in
effect failed to obliterate the hypothesis of appellant's guiltlessness.

Be that as it may, although testimony about a perfect chain does not always have to be the standar d
because it is almost always impossible to obtain, an unbroken chain of custody indeed becomes
indispensable and essential when the item of real evidence is a narcotic substance. A unique
characteristic of narcotic substances such asshabu is that they are not distinctive and are not readily
identifiable as in fact they are subject to scientific analysis to determine their composition and
nature.32
And because they cannot be readily and properly distinguished visually from other
substances of the same physical and/or chemical nature, they are susceptible to alteration,
tampering, contamination,33
substitution and exchange-34
whether the alteration, tampering,
contamination, substitution and exchange be inadvertent or otherwise not.35
It is by reason of this
distinctive quality that the condition of the exhibit at the time of testing and trial is critical.36
Hence, in
authenticating narcotic specimens, a standard more stringent than that applied to objects which are
readily identifiable must be applied-a more exacting standard that entails a chain of custody of the
item with sufficient completeness if only to render it improbable that the original item has either been
exchanged with another or contaminated or tampered with.37
The Court certainly cannot reluctantly close its eyes to the possibility of substitution, alteration or
contamination-whether intentional or unintentional-of narcotic substances at any of the links in the
chain of custody thereof especially because practically such possibility is great where the item of real
evidence is small and is similar in form to other substances to which people are familiar in their daily
lives.38
Graham v. State39
in fact acknowledged this danger. In that case, a substance later shown to
be heroin was excluded from the prosecution evidence because prior to examination, it was handled
by two police officers who, however, did not testify in court on the condition and whereabouts of the
exhibit at the time it was in their possession. The court in that case pointed out that the white powder
seized could have been indeed heroin or it could have been sugar or baking powder. It thus declared
that the state must be able to show by records or testimony the continuous whereabouts of the
exhibit at least between the time it came into the possession of police officers until it was tested in
the laboratory to determine its composition.40
Reasonable safeguards are provided for in our drugs laws to protect the identity and integrity of
narcotic substances and dangerous drugs seized and/or recovered from drug offenders. Section
2141 of R.A. No. 9165 materially requires the apprehending team having initial custody and control of
the drugs to, immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the Department of
Justice, and any elected public official who shall be required to sign the copies of the inventory and
be given a copy thereof. The same requirements are also found in Section 242 of its implementing
rules43
as well as in Section 244
of the Dangerous Drugs Board Regulation No. 1, series of 2002.45
These guidelines, however, were not shown to have been complied with by the members of the buy-
bust team, and nothing on record suggests that they had extended reasonable efforts to comply with
the statutory requirements in handling the evidence. Velasco, the leader of the raiding team, himself
admitted that as soon as appellant was arrested, Cinco had taken custody of the plastic sachet
of shabu, placed it in his pocket and brought the same together with appellant to the police station. It
was at the police station-and not at the place where the item was seized from appellant-where
according to him (Velasco), Cinco had placed the initials "SOO" on the specimen. Velasco never
even mentioned that the identifying mark on the specimen was placed in appellant's presence; he
could not even remember whether or not the specimen had been properly inventoried and
photographed at least in appellant's presence. Even more telling is the fact that, as elicited from
Velasco himself during his cross-examination, no evidence custodian had been designated by the
raiding team to safeguard the identity and integrity of the evidence supposedly seized from
appellant.46

All these aforementioned flaws in the conduct of the post-seizure custody of the dangerous drug
allegedly recovered from appellant, taken together with the failure of the key persons who handled
the same to testify on the whereabouts of the exhibit before it was offered in evidence in court,
militates against the prosecution's cause because it not only casts doubt on the identity of the corpus
delicti but also tends to discredit, if not totally negate, the claim of regularity in the conduct of official
police operation.
What we can fairly assume is that the Court of Appeals had overlooked the significance of these
glaring details in the records of the case as it placed blind reliance right away on the credibility of
Velasco's testimony and on the presumption of regularity and thereby it failed to properly account for
the missing substantial links in the chain of custody of the evidence. In the same vein the liberality,
suggested by the OSG relative to post-seizure custody of narcotics under paragraph 1 Section 2 of
Board Regulation No. 1, can hardly be given merit precisely because the proviso in that section of
the regulation requires that the integrity and the evidentiary value of the evidence be properly
preserved by the apprehending officer/team in order that non-compliance with the post-seizure
custody requirements be excused on justifiable grounds.47
It needs no elucidation that the presumption of regularity in the performance of official duty must be
seen in the context of an existing rule of law or statute authorizing the performance of an act or duty
or prescribing a procedure in the performance thereof. The presumption, in other words, obtains only
where nothing in the records is suggestive of the fact that the law enforcers involved deviated from
the standard conduct of official duty as provided for in the law. Otherwise, where the official act in
question is irregular on its face, an adverse presumption arises as a matter of course.48 There is
indeed merit in the contention that where no ill motives to make false charges was successfully
attributed to the members of the buy-bust team, the presumption prevails that said police operatives
had regularly performed their duty, but the theory is correct only where there is no showing that the
conduct of police duty was irregular. People v. Dulay49
and People v. Ganenas50
in fact both suggest
that the presumption of regularity is disputed where there is deviation from the regular performance
of duty. Suffice it to say at this point that the presumption of regularity in the conduct of police duty is
merely just that-a mere presumption disputable by contrary proof and which when challenged by the
evidence cannot be regarded as binding truth.51
It must be emphasized at this juncture that what can reasonably be presumed based on the records
of this case is that Velasco is aware of his duties and responsibilities as an agent of the government
in its anti-narcotics campaign. A member of the anti-narcotics division of the police since
1997,52
Velasco can be reasonably presumed to be adept in and mindful of the proper procedure in
apprehending drug offenders, securing and taking custody of the evidence obtained in police
operations such as this one and preserving the integrity of the evidence by protecting the chain of
custody thereof.53
However, for reasons as obvious as intimated above, even this presumption is
unworthy of credit.
All told, in view of the deviation by the buy-bust team from the mandated conduct of taking post-
seizure custody of the dangerous drug in this case, there is no way to presume that the members
thereof had performed their duties regularly. Even granting that we must blindly rely on the credibility
of Velasco's testimony, still, the prosecution evidence would fall short of satisfying the quantum of
evidence required to arrive at a finding of guilt beyond reasonable doubt inasmuch as the evidence
chain failed to solidly connect appellant with the seized drug in a way that would establish that the
specimen is one and the same as that seized in the first place and offered in court as evidence. The
Court cannot indulge in the presumption of regularity of official duty if only to obliterate the obvious
infirmity of the evidence advanced to support appellant's conviction. In Mallillin v. People,54
we
categorically declared that the failure of the prosecution to offer in court the testimony of key
witnesses for the basic purpose of establishing a sufficiently complete chain of custody of a
specimen of shabu and the irregularity which characterized the handling of the evidence before the

same was finally offered in court, materially conflict with every proposition as to the culpability of the
accused. For the same plain but consequential reason, we will not hesitate to reverse the judgment
of conviction in the present appeal.
One final word. In no uncertain terms must it be stressed that basic and elementary is the
presupposition that the burden of proving the guilt of an accused rests on the prosecution which
must draw strength from its own evidence and not from the weakness of the defense. The rule, in a
constitutional system like ours, is invariable regardless of the reputation of the accused because the
law presumes his innocence until the contrary is shown. In dubio pro reo. When moral certainty as to
culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.55
WHEREFORE, the assailed Decision of the Court of Appeals in CA-G.R. CR.-H.C. No. 02158
affirming the judgment of conviction rendered by the Regional Trial Court of Manila, Branch 2,
is REVERSED and SET ASIDE. Appellant Samuel Obmiranis y Oreta is ACQUITTED on reasonable
doubt and is thus accordingly ordered released immediately from confinement, unless he is lawfully
confined for another offense.
The Director of the Bureau of Corrections is directed to implement this Decision and to report to this
Court his action hereon within five (5) days from receipt hereof.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ARTURO D. BRION
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, it
is hereby certified that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court's Division.
REYNATO S. PUNO
Chief Justice
SUPREME COURT
Manila
EN BANC
G.R. No. L-6025 May 30, 1964
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
AMADO V. HERNANDEZ, ET AL., accused,
AMADO V. HERNANDEZ, ET AL., defendants-appellants.
-----------------------------
G.R. No. L-6026 May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BAYANI ESPIRITU, ET AL., accused,
BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.
LABRADOR, J.:
This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First
Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs.
Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In
Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with Multiple Murder, Arsons
and Robberies; the appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado
Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and Andres
Baisa, Jr. were among those sentenced in the judgment appealed from, but they have withdrawn
their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders,
arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.;
they all appealed but Andres Balsa, Jr. withdrew his appeal.
The information filed against defendants Hernandezand others in Criminal Case No. 15481 alleged:
I. That on or about March 15, 1945, and for some time before the said date and continuously
thereafter, until the present time, in the City of Manila, Philippines, and the place which they
had chosen as the nerve center of all their rebellious activities in the different parts of the
Philippines, the said accused, conspiring, confederating and cooperating with each other, as
well as with the thirty-one (31) defendants charged in Criminal Cases Nos. 19071, 14082,
14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and
also with others whose whereabouts and identities are still unknown, the said accused and
their other co-conspirators, being then high ranking officers and/or members of, or otherwise
affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged
in an armed rebellion against the Government of the Philippines thru act theretofore
committed and planned to be further committed in Manila and other places in the Philippines,
and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly
known as the "Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully
and feloniously help, support, promote, maintain, cause, direct and/or command the
"Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and
take arms against the Republic of the Philippines, or otherwise participate in such armed
public uprising, for the purpose of removing the territory of the Philippines from the allegiance
to the government and laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or
"Hukbalahaps" have risen publicly and taken arms to attain the said purpose by then and
there making armed raids, sorties and ambushes, attacks against police, constabulary and
army detachments as well as innocent civilians, and as a necessary means to commit the
crime of rebellion, in connection therewith and in furtherance thereof, have then and there
committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private
and public property to create and spread chaos, disorder, terror, and fear so as to facilitate
the accomplishment of the aforesaid purpose, as. follows, to wit: (Enumeration of thirteen
attacks on government forces or civilians by Huks on May 6, 1946, August 6, 1946, April 10,
1947, May 9, 1947, August 19, 1947, June, 1946, April 28, 1949, August 25, 1950, August
26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950.)
II. That during the period of time and under the same circumstances herein-above indicated
the said accused in the above-entitled case, conspiring among themselves and with several
others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or

maintained the Congress of Labor Organizations (CLO), formerly known as the Committee
on Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or
associated labor unions and other "mass organizations" in different places in the Philippines,
as an active agency, organ, and instrumentality of the Communist Party of the Philippines
(P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and
synchronize its activities — as the CLO thus organized, established, led and/or maintained
by the herein accused and their co-conspirators, has in fact fully cooperated in and
synchronized its activities with the activities of the "Hukbong Mapagpalaya Ng Bayan"
(H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the
Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete and permanent
success of the above-mentioned armed rebellion against the Government of the Philippines.
The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres
Baisa, Jr. and Teopista Valerio, alleges:
That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto
and continuously up to the present time, in the City of Manila, the seat of the government of
the Republic of the Philippines, which the herein accused have intended to overthrow, and
the place chosen for that purpose as the nerve center of all their rebellious atrocities in the
different parts of the country, the said accused being then high ranking officials and/or
members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong
Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps"
(HUKS), the latter being the armed forces of said Communist Party of the Philippines; having
come to an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082,
14270, 14315, 14344 of the Court of First Instance of Manila and decided to commit the
crime of rebellion, and therefore, conspiring and confederating with all of the 29 accused in
said criminal cases, acting in accordance with their conspiracy and in furtherance thereof,
together with many others whose whereabouts and identities are still unknown up to the filing
of this information, and helping one another, did then and there willfully, unlawfully and
feloniously promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng
Bayan", (HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms against the
Government or otherwise participate therein for the purpose of overthrowing the same, as in
fact, the said "Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly
and taken arms against the Government, by then and there making armed raids, sorties and
ambushes, attacks against police, constabulary and army detachment, and as a necessary
means to commit the crime of rebellion, in connection therewith and in furtherance thereof,
by then and there committing wanton acts of murder, spoilage, looting, arson, kidnappings,
planned destruction of private and public buildings, to create and spread terrorism in order to
facilitate the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of
thirteen attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946,
April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950,
August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29,
1950).
A joint trial of both cases was held, after which the court rendered the decision subject of the present
appeals.
APPEAL OF AMADO V. HERNANDEZ
After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following:
(1) that he is a member of the Communist Party of the Philippines and as such had aliases, namely,
Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist publication, as well as

other publications of the Party; (3) that he held the position of President of the Congress of Labor
Organizations; (4) that he had close connections with the Secretariat of the Communist Party and
held continuous communications with its leaders and its members; (5) that he furnished a
mimeographing machine used by the Communist Party, as well as clothes and supplies for the
military operations of the Huks; (6) that he had contacted well-known Communists coming to the
Philippines and had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the
CLO, etc. Evidence was also received by the court that Hernandez made various speeches
encouraging the people to join in the Huk movement in the provinces.
The court also found that there was a close tie-up between the Communist Party and the Congress
of Labor Organizations, of which Hernandez was the President, and that this Congress was
organized by Hernandez in conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos,
Guillermo Capadocia, etc.
We will now consider the nature and character of both the testimonial as well as the documentary
evidence, independently of each other, to find out if the said evidence supports the findings of the
court.
Testimonial Evidence
Amado V. Hernandez took the oath as member of the Communist Party in the month of October,
1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in the presence of
Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he was
given the pseudonyms of Victor and Soliman, and received copies of the Communist paper "Titis".
He made various speeches on the following dates and occasions:
(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in
which he announced that the people will soon meet their dear comrade in the person of
Comrade Luis Taruc.
(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which
occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort that the PKM
are the peasants in the field and the Huks are the armed forces of the Communist Party; and
the CLO falls under the TUD of the Communist Party. 1äwphï 1. ñët
(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the
World Federation of Trade Unions and after arrival from abroad a dinner was given to him by
the people of Gagalangin, at which Hernandez delivered a speech and he said that he
preferred to go with the Huks because he felt safer with them than with the authorities of the
Government.
(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the
frauds in the 1947 elections, graft and corruption in the elections and that if improvement
cannot be made by the ballots, they could be made by bullets; and enjoined the people to go
to the hills and join Luis Taruc the head of the dissidents in the Philippines.
(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the
World Peace at the CLO headquarters at 330 P. Campa. He attacked the city mayor and
incited the people to go to Balintawak and see Bonifacio there and thereafter join four
comrades under the leadership of Luis Taruc.

(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at
330 P. Campa. He asked the unemployed to approve a resolution urging the Government to
give them jobs. In conclusion he said that if the Government fails to give them jobs the only
way out was to join the revolutionary forces fighting in the hills. He further said that Mao Tse
Tung, leader of the People's Army in China, drove Chiang Kai Shek from his country, and
that Luis Taruc was also being chased by Government forces run by puppets like Quirino,
etc.
(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez
expressed regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to
the field to join the liberation army of the HMB, justifying their going out and becoming
heroes by fighting in the fields against Government forces until the ultimate goal is achieved.
The above evidence was testified to by Florentino Diolata who was the official photographer of the
CLO since August, 1948.
On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a
Huk from 1942 to 1950, explained:
(1) The ultimate goal of the Communist Party is to overthrow the president government by
force of aims and violence; thru armed revolution and replace it with the so-called
dictatorship of the proletariat the Communist Party carries its program of armed overthrow of
the present government by organizing the HMB and other forms of organization's such as
the CLO, PKM, union organizations, and the professional and intellectual group; the CLO
was organized by the Trade Union Division TUD of the Communist Party.
(2) A good majority of the members of the Executive Committee and the Central Committee
of the CLO were also top ranking officials of the Communist Party; activities undertaken by
the TUD - the vital undertaking of the TUD is to see that the directives coming from the
organizational bureau of the Communist Party can be discussed within the CLO especially
the Executive Committee. And it is a fact that since a good majority of the members of the
Executive Committee are party members, there is no time, there is no single time that those
directives and decisions of the organizational department, thru the TUD are being objected to
by the Executive Committee of the CLO. These directives refer to how the CLO will conduct
its functions. The executive committee is under the chairmanship of accused Amado V.
Hernandez.
(3) The CLO played its role in the overall Communist program of armed overthrow of the
present government and its replacement by the dictatorship of the proletariat by means of
propaganda - by propagating the principles of Communism, by giving monetary aid, clothing,
medicine and other forms of material help to the HMB. This role is manifested in the very
constitution of the CLO itself which expounded the theory of classless society and the
eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution
contained in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579").
Thru propaganda, the CLO promoted the aims of Communist Party and disseminated
Communist ideas by:
(a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh.
V-1662), founder of Communism in the Philippines, in the session hall of the CLO
headquarters at 2070 Azcarraga and then at 330 P. Campa;

(b) The distribution of foreign communist reading materials such as the World
Federation of Trade Union Magazine, International Union of Students magazine,
Voice magazine of the marine cooks of the CLO, World Committee of the Defenders
of the Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and
World Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899,
V-912, V-853, W-996 and V-967);
(c) The publication and distribution of some local subversive publications such as the
"Titis", "Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor
Demands Justice" and "Hands Off Korea" authored by accused Amado V.
Hernandez;
(d) Principles of Communism were also propagated thru lectures, meetings, and by
means of organization of committees in the educational department as well as
researches in the Worker's Institute of the CLO.
(4) The CLO also helped carry out the program of the Communist Party thru infiltration of
party members and selected leaders of the HMB within the trade unions under the control of
the CLO. The Communist Party thru the CLO assigned Communist Party leaders and
organizers to different factories in order to organize unions. After the organization of the
union, it will affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will
register said union with the Department of Labor; and the orientation and indoctrination of the
workers is continued in the line of class struggle. After this orientation and infiltration of the
Communist Party members and selected leaders of the HMB with the trade unions under the
control of the CLO is already achieved and the group made strong enough to carry out its
aims, they will begin the sporadic strikes and the liquidation of anti-labor elements and anti-
Communist elements and will create a so-called revolutionary crisis. That revolutionary crisis
will be done for the party to give directives to the HMB who are fighting in the countrysides
and made them come to the city gates. The entry of the HMB is being paved by the
simultaneous and sporadic strikes, by ultimate general strikes thru the management of the
CLO.
Important Documents Submitted at Trial
1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was
referred to as "Victor" or "Soliman".
(a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter
of his sympathies for other communists, describing his experiences with Communists
abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-2001-
2004)
(b) "Paano Maisasagawa, etc." — mentions different groups of labor unions of which
Victor heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU
(Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41)
(c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez
as Victor from co-party members Hugo and Ely. (Exh. LL)
(d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor.
(Exh. 1103)

(e) Saulo's letter about his escape, asks Victor why his press statement was not
published in the newspapers. (Exh. C-362) Letter was however published by
Hernandez in the Daily Mirror.
(f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor.
(Exh. D-463-64)
(g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at
Pampanga St. to bring to the latter communications from the Communist Party. (Exh.
D-1203) That Soliman was given copies of "Titis". (Exh. D-1209)
(h) SEC directions to Politburo members, Soliman not to be involved with
Nacionalista Rebels. (Exh. F-92-93. SEC)
(i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has
"tendencies of careerism and tendency to want to deal with leaders of the party"; that
he should be asked to choose to go underground or fight legally. (Exh. F-562)
(j) Explanation given by Hernandez why he did not join Saulo in going underground.
(Exh. V-87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2)
His election as President of CLO until August of following year. (Exhs. V-42, W-9)
2. Letters and Messages of Hernandez.
(a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)
(b) To SOBSI Jakarta — that Filipinos are joining other communist countries of the
East. (Exh. V-82)
(c) Press release on Saulo's disappearance published by Amado Hernandez. (Exh.
W-116-120)
(d) To Hugh and Eddie, July 8, 1949 — Extends greetings to National Union of
Marine Cooks and Stewards, states that labor has one common struggle — "the
liberation of all the peoples from the chains of tyranny, fascism and imperialism".
(Exh. V-259)
(e) To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)
(f) Appeal to the Women and Asia. (Exh. V-5-10)
(g) Letter to Julie (Exh. V-2001-2004)
(h) Letter to Chan Lieu - states that leaders during the war are being persecuted, like
Taruc. Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88)
(i) Letter to John Gates of the Daily Worker — condemns Wall Street maneuvers;
corruption and graft in Quirino administration, etc. (Exh. V-83)
(j) Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-
79)

(k) Communication of Hernandez to CLO at MRRCO — Praises Balgos and
Capadocia for joining the Huks. (Exhs. V-12-22, V-289)
(l) "Philippine labor Demands Justice" — Attacks czars of Wall Street and U.S. Army
and Government. (Exh. V-94) .
(m) Letter to Taruc — June 28, 1948.-States solidarity among the CLO Huks and
PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)
(n) "Philippines Is Not A Paradise" — States of a delegation to Roxas attacking
unemployment. (Exh. V-90-93)
(o) Article "Progressive Philippines" — (Exh. V-287)
(p) Article "Hands Off Korea" — (Exhs. V-488-494, 495-501, 509-515, W-25-26)
(q) "Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)
(r) Press statement of Hernandez — opposes acceptance of decorations from
Greece by Romulo. (Exh. V-72)
3. Other Activities of Hernandez.
(a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he
sent to the field. Letters show of sending of supplies to Huks. (Exh. S-383)
(b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks.
(Exh. C-364)
(c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan
for inclusion in Bulosan's book. (Exh. FF-1)
(d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed
forces. (Photographs, Exhs. X-6 RR-54-55A)
(e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs,
Exhs. T-1, RR-136-138A)
(f) Had knowledge of the going underground of Capadocia and Balgos and issued
press release about their going underground. (Exh. F-91)
(g) Victor mentioned to continue as contact for Chino. (Exh. C-362)
(h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh.
D-451-451-A)
(i) Associated with fellow ranking Communist leaders.
The Court upon consideration of the evidence submitted, found (1) that the Communist Party was
fully organized as a party and in order to carry out its aims and policies a established a National

Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau (OB),
and National Courier or Communication Division (NCD), each body performing functions indicated in
their respective names; (2) that in a meeting held on August 11, 1950 the SEC discussed the
creation of a Military Committee of the Party and a new GHQ, under which on September 29, 1950
the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a
body known as the National Intelligence Division was created, to gather essential military intelligence
and, in general, all information useful for the conduct of the armed struggle (4) that a National
Finance Committee was also organized as a part of the Politburo and answerable to it; (5) that the
country was divided into 10 Recos, the 10th Reco comprising the Manila and suburbs command; (6)
that since November, 1949 the CPP had declared the existence of a revolutionary situation and
since then the Party had gone underground and the CPP is leading the armed struggle for national
liberation, and called on the people to organize guerrillas and coordinate with the HMB on the
decisive struggle and final overthrowof the imperialist government; (7) that in accordance with such
plan the CPP prepared plans for expansion and development not only of the Party but also of the
HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB
from 10,800 in July 1950 to 172,000 in September 1951, et seq.
Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations
for political purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of
the HMB on March 25, 1950. The HMB attacks that were reported to the PB were those made in
May, 1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947; August 25, 1950; August 26,
1950; October 15 and 17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August
19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26, 1950;
March 29, 1950.
The theory of the prosecution, as stated in the lower court's decision, is as follows:
The evidence does not show that the defendants in these cases now before this Court had
taken a direct part in those raids and in the commission of the crimes that had been
committed. It is not, however, the theory of the prosecution that they in fact had direct
participation in the commission of the same but rather that the defendants in these cases
have cooperated, conspired and confederated with the Communist Party in the prosecution
and successful accomplishment of the aims and purposes of the said Party thru the
organization called the CLO (Congress of Labor Organizations).
The Court found that the CLO is independent and separate from the CPP, organized under the same
pattern as the CPP, having its own National Congress, a Central Committee (which acts in the
absence of and in representation of the National Congress), an Executive Committee (which acts
when the National Congress and the Executive Committee are not in session), and seven
permanent Committees, namely, of Organization, Unemployment and Public Relations, Different
Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist
Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of
which Hernandez was the President, is described by the court below in finding, thus:
Just how the CLO coordinates its functions with the Communist Party organ under which it operates
was explained by witness Guillermo S. Calayag, one-time ranking member of the Communist Party
and the CLO who typewrites the "Patnubay sa Education" from a handwritten draft of Capadocia,
which is one of the texts used in the Worker's institute of the CLO. According to him, the CLO plays
its role by means of propaganda, giving monetary aid, clothing, medicine and other material forms of
help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is done
by lectures, meetings, and the organization of committees of the educational department as well as
researches at the CLO Worker's Institute.

Another way of helping the Communist Party of the Philippines is by allowing the Communist
Party leaders to act as organizers in the different factories in forming a union. These Party
Members help workers in the factories to agitate for the eradication of social classes and
ultimately effect the total emancipation of the working classes thru the establishment of the
so-called dictatorship of the proletariat. It is the duty of these Communist Party members to
indoctrinate uninitiated workers in the union to become proselytes of the Communist Party
ideology. After the right number is secured and a union is formed under a communist leader,
this union is affiliated with the CLO and this in turn registers the same with the Department of
Labor. The orientation and indoctrination of the masses is continued with the help of the
CLO. The primary objective of the CLO is to create what is called a revolutionary crisis. It
seeks to attain this objective by first making demands from the employers for concessions
which become more and more unreasonable until the employers would find it difficult to grant
the same. Then a strike is declared. But the strikes are only preparation for the ultimate
attainment of the Communist goal of armed overthrow of the government. After the workers
in the factories have already struck in general at the behest of the Communist Party thru the
CLO a critical point is reached when a signal is given for the armed forces of the Communist
Party, the HMB, to intervene and carry the revolution now being conducted outside to within
the city.
On the basis of the above findings, the court below found Hernandez guilty as principal of the crime
charged against him and sentenced him to suffer the penalty of reclusion perpetua with the
accessories provided by law, and to pay the proportionate amount of the costs.
Our study of the testimonial and documentary evidence, especially those cited by the Court in its
decision and by the Solicitor General in his brief, discloses that defendant-appellant Amado V.
Hernandez, as a Communist, was an active advocate of the principles of Communism, frequently
exhorting his hearers to follow the footsteps of Taruc and join the uprising of the laboring classes
against capitalism and more specifically against America and the Quirino administration, which he
dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of
Communistic Theory there appears no evidence that he actually participated in the actual conspiracy
to overthrowby force the constituted authority.
Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If,
as testified to by Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures,
meetings and organization of committees of education by Communists; if, as stated, the CLO merely
allowed Communist Party leaders to act as organizers in the different factories, to indoctrinate the
CLO members into the Communist Party and proselytize them to the Communist ideology; if, as also
indicated by Calayag, the CLO purports to attain the ultimate overthrow of the Government first by
making demands from employers for concessions until the employers find it difficult to grant the
same, at which time a strike is declared; if it is only after the various strikes have been carried out
and a crisis is thereby developed among the laboring class, that the Communist forces would
intervene and carry the revolution — it is apparent that the CLO was merely a stepping stone in the
preparation of the laborers for the Communist' ultimate revolution. In other words, the CLO had no
function but that of indoctrination and preparation of the members for the uprising that would come. It
was only a preparatory organization prior to revolution, not the revolution itself. The leader of the
CLO therefore, namely Hernandez, cannot be considered as a leader in actual rebellion or of the
actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his
presidency and leadership of the CLO cannot be considered as having actually risen up in arms in
rebellion against the Government of the Philippines, or taken part in the conspiracy to commit the
rebellion as charged against him in the present case; he was merely a propagandist and
indoctrinator of Communism, he was not a Communist conspiring to commit the actual rebellion by
the mere fact of his presidency of the CLO.

The court below declares that since November 1949 the Communist Party of the Philippines had
declared the existence of the revolutionary situation and since then the Party had gone underground,
with the CPP leading the struggle for national integration and that in the month of January 1950, it
was decided by the said Party to intensify the HMB military operations for political purposes. The
court implicates the appellant Hernandez as a co-conspirator in this resolution or acts of the
Communist Party by his mere membership thereto. We find this conclusion unwarranted. The
seditious speeches of Hernandez took place before November, 1949 when the CPP went
underground. The court belowhas not been able to point out, nor have We been able to find among
all acts attributed to Hernandez, any single fact or act of his from which it may be inferred that he
took part in the deliberations declaring the existence of a revolutionary situation, or that he had gone
underground. As a matter of fact the prosecution's evidence is to the effect that Hernandez refused
to go underground preferring to engage in what they consider the legal battle for the cause.
We have also looked into the different documents which have been presented at the time of the trial
and which were confiscated from the office of the Politburo of the Communist Party. The speeches
of Hernandez were delivered before the declaration by the Communist Party of a state of
revolutionary situation in 1949. Neither was it shown that Hernandez was a member of the Executive
Committee, or of the SEC, or of the Politburo of the Communist Party; so NO presumption can arise
that he had taken part in the accord or conspiracy declaring a revolution. In short, there has been no
evidence, direct or indirect, to relate or connect the appellant Hernandez with the uprising or the
resolution to continue or maintain said uprising, his participation in the deliberations leading to the
uprising being inferred only from the fact that he was a communist.
The practice among the top Communists, as declared by the trial court appears to have been for
important members, if they intend actually to join the rebellion, to go underground, which meant
leaving the city, disappearing from sight and/or secretly joining the forces in the field.
The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of
September 1, 1950, to Saulo and Hernandez, which reads:
11. In view of the new developments in the city, send out Elias who prefers to work outside.
Present problem of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom,
retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and
other relatively exposed mass leaders.
And the lower court itself found that whereas Saulo went underground and joined the underground
forces outside the City, Hernandez remained in the City, engaged in the work of propaganda,
making speeches and causing the publication of such matters as the Communist Party leaders
directed him to publish.
That Hernandez refused to go underground is a fact which is further corroborated by the following
reasons (excuses) given by him for not going underground, namely (1) that his term of councilor of
the City of Manila was to extend to December, 1951; and (2) that he was elected President of the
CLO for a term which was to end the year 1951.
As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista
Rebels, and reported to the Politburo that Hernandez "has tendencies of careerism, and tending to
want to deal with leaders of the Nacionalista Party instead of following CPP organizational
procedures."
The court below further found that Hernandez had been furnishing supplies for the Huks in the field.
But the very document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p.

49), is to the effect that clothes and shoes that Hernandez was supposed to have sent have not
been received. It is true that some clothes had been sent thru him to the field, but these clothes had
come from a crew member of a ship of the American President Lines. He also, upon request, sent a
portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating machine
received by Hernandez from one Rolland Scott Bullard a crew member of the SS President
Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo.
Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant
Hernandez, who in turn issued press releases for which he found space in the local papers. His acts
in this respect belong to the category of propaganda, to which he appears to have limited his actions
as a Communist.
The acts of the appellant as thus explained and analyzed fall under the category of acts of
propaganda, but do not prove that he actually and in fact conspired with the leaders of the
Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the
information. And his refusal to go underground because of his political commitments occasioned by
his term of election as president of the CLO and the impressions caused by his acts on the
Communist leaders, to the effect that he was in direct communication or understanding with the
Nacionalista Party to which he was affiliated, creates in Us the reasonable doubt that it was not his
Communistic leanings but his political ambitions, that motivated his speeches sympathizing with the
Huks. For which reason We hold that the evidence submitted fails to prove beyond reasonable doubt
that he has conspired in the instigation of the rebellion for which he is held to account in this criminal
case.
The question that next comes up for resolution is: Does his or anyone's membership in the
Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit
rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent provision
reads:
ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy
and proposal to commit rebellion or insurrection shall be punished, respectively, by prision
correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and
by prision correccional in its medium period and a fine not exceeding 2,000 pesos.
The advocacy of Communism or Communistic theory and principle is not to be considered as a
criminal act of conspiracy unless transformed or converted into an advocacy of action. In the very
nature of things, mere advocacy of a theory or principle is insufficient unless the communist
advocates action, immediate and positive, the actual agreement to start an uprising or rebellion or an
agreement forged to use force and violence in an uprising of the working class to overthrow
constituted authority and seize the reins of Government itself. Unless action is actually advocated or
intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy
of the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As
a theorist the Communist is not yet actually considered as engaging in the criminal field subject to
punishment. Only when the Communist advocates action and actual uprising, war or otherwise, does
he become guilty of conspiracy to commit rebellion. Borrowing the language of the Supreme Court of
the United States:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or
on conduct can only be justified by reference to the relationship of that status or conduct to
other concededly criminal activity (here advocacy of violent overthrow), that relationship must
be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack
under the Due Process Clause of the Fifth Amendment. Membership, without more, in an

organization engaged in illegal advocacy, it is now said, has not heretofore been recognized
by this Court to be such a relationship. ... .
What must be met, then, is the argument that membership, even when accompanied by the
elements of knowledge and specific intent, affords an insufficient quantum of participation in
the organization's alleged criminal activity, that is, an insufficiently significant form of aid and
encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be
recognized that a person who merely becomes a member of an illegal organization, by that
"act" alone need be doing nothing more than signifying his assent to its purposes and
activities on one hand, and providing, on the other, only the sort of moral encouragement
which comes from the knowledge that others believe in what the organization is doing. It may
indeed be argued that such assent and encouragement do fall short of the concrete, practical
impetus given to a criminal enterprise which is lent for instance by a commitment on the part
of the conspirator to act in furtherance of that enterprise. A member, as distinguished from a
conspirator, may indicate his approval of a criminal enterprise by the very fact of his
membership without thereby necessarily committing himself to further it by any act or course
of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)
The most important activity of appellant Hernandez appears to be the propagation of improvement of
conditions of labor through his organization, the CLO. While the CLO of which he is the founder and
active president, has communistic tendencies, its activity refers to the strengthening of the unity and
cooperation between labor elements and preparing them for struggle; they are not yet indoctrina ted
in the need of an actual war with or against Capitalism. The appellant was a politician and a labor
leader and it is not unreasonable to suspect that his labor activities especially in connection with the
CLO and other trade unions, were impelled and fostered by the desire to secure the labor vote to
support his political ambitions. It is doubtful whether his desire to foster the labor union of which he
was the head was impelled by an actual desire to advance the cause of Communism, not merely to
advance his political aspirations.
Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor
has any particular act on his part been pointed to Us, which would indicate that he had advocated
action or the use of force in securing the ends of Communism. True it is, he had friends among the
leaders of the Communist Party, and especially the heads of the rebellion, but this notwithstanding,
evidence is wanting to show that he ever attended their meetings, or collaborated and conspired with
said leaders in planning and encouraging the acts of rebellion, or advancing the cause thereof.
Insofar as the furnishing of the mimeograph machine and clothes is concerned, it appears that he
acted merely as an intermediary, who passed said machine and clothes on to others. It does not
appear that he himself furnished funds or material help of his own to the members of the rebellion or
to the forces of the rebellion in the field.
But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the
chief of the rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster
the rebellion or the uprising.
We next consider the question as to whether the fact that Hernandez delivered speeches of
propaganda in favor of Communism and in favor of rebellion can be considered as a criminal act of
conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his giving and
rendering speeches favoring Communism would not make him guilty of conspiracy, because there
was no evidence that the hearers of his speeches of propaganda then and there agreed to rise up in
arms for the purpose of obtaining the overthrowof the democratic government as envisaged by the
principles of Communism. To this effect is the following comment of Viada:

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