[ G.R. No. L-23. August 14, 1945 ] 75 Phil. 1
[ G.R. No. L-23. August 14, 1945 ]
FILOMENA DOMIIT CABILING, PETITIONER, VS. THE PRISON OFFICER OF THE MILITARY PRISON OF QUEZON CITY, RESPONDENT. D E C I S I O N
MORAN, C.J.:
Lino Cabiling is a staff sergeant of the Philippine Scouts, United States Army, and was charged with having killed Sergeant Epifanio Roce with premeditation on or about the 27th of June, 1945, by shooting him with a carbine. He was tried and found guilty by the General Court-Martial appointed by the Commanding General of Philippine Base Section, United States Army, and sentenced to (a) dishonorable discharge, (b) forfeiture of all pay and al- lowances, due and to become due, and (c) confinement at hard labor for seven (7) years. He is now detained at the Philippine Detention and Rehabilitation Center, Apo 75, by order of the Commanding General aforesaid.
It is alleged in the petition for habeas corpus filed in his behalf that he is illegally detained, the General Court- Martial having no jurisdiction to try and convict him for the crime charged.
Rule 102, section 4, of the Rules of Court, is as follows:
“When writ not allowed or discharge authorized.—If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or in any part of the United States, and who ought to be delivered up to the executive power of the United States, or of any State or territory thereof; or of a person suffering imprisonment under lawful judgment.”
Under this provision, the only question to be determined is whether or not the General Court-Martial was vested with jurisdiction to try and convict the petitioner for the crime of murder. There seems to be no doubt that it had such jurisdiction. According to Article of War 12 “Gen- eral Courts-Martial shall have power to try any person subject to military law for any crime or offense made punishable by these articles, * * *.” The petitioner, being a staff sergeant of the Philippine Scouts, United States Army, is a person subject to military law, under Article of War 2, and in time of war, the crime of murder committed by a person subject to military law, comes within the jurisdiction of a court-martial, in accordance with Article of War 92. (U. S. vs. Colley, 8 Phil., 58, 63; U. S. vs. Tubig, 3 Phil., 244 and U. S. vs. Grafton, 6 Phil., 55, 60.) Under proper charge of murder the accused may be convicted by the court-martial for a lesser included offense. (See Articles of War 47, 49, 93, and 96.)
It is maintained, however, that the Philippines has already been liberated and the Government of the Commonwealth reestablished. But the war against Japan by the United States and the liberated Philippines is still going on, and this is within the judicial notice of courts.
Petition is dismissed, without costs.
Ozaeta, Paras, Jaranilla, Feria, Pablo, and Espiritu, JJ., concur.