[ G.R. No. L-1656. January 07, 1949 ] 82 Phil. 524
[ G.R. No. L-1656. January 07, 1949 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. ROMAN VILO, DEFENDANT AND APPELLANT. D E C I S I O N
PARAS, J.:
This is an appeal from a judgment of the People’s Court convicting the appellant, Roman Vilo, of the complex crime of treason with murder and imposing upon him the death penalty and a fine of P10,000 with costs. Appellants attorney de oficio admits that the People’s Court correctly found the appellant guilty of the following overt acts: (1). The apprehension and torture on April 15, 1944, in Carcar, Cebu, of Amando Satorre, Ireneo Medel, Maximo Satorre and Eusebio Rezada, and the killing of Amando Satorre, all due to their connection with the resistance movement. (2) The apprehension on April 15, 1944, in Carcar, Cebu, of Laureano Raponoya, suspected guerrilla member, and his delivery to the Japanese who tortured, him. (3) The apprehension, torture and killing of one Segundo in March, 1944, in Pinamungahan, Cebu, because the latter was a guerrilla volunteer guard. And the only plea invoked in behalf of the appellant is that he acted under duress. In support of this plea, it is alleged that on March 25, 1942, the appellant was inducted into the USAFFE organization; that after four months he was arrested, with forty-two others, by the Japanese who tortured them, as a result of which the appellant was hospitalized for two months; that he was thereafter made to join the puppet Philippine Constabulary, with station at different places in the province of Cebu. Even if these allegations are true, they are not sufficient to show that, when the appellant committed the acts imputed to him, he was acting under any apparent threat of harm from the Japanese, much less from any Filipino superiors. That the appellant had previously been arrested or made to join the Constabulary, did not amount to an order to or threat upon him, leaving him without any choice other than to perform the specific acts of which he was convicted, especially when it is remembered that said acts took place about two years after appellant’s alleged torture by the Japanese. Moreover, the way the appellant killed his victims—by bayoneting them and by further slashing the knees of one so as to make the latter’s body fit into his grave,—is rather inconsistent with the attitude of one who might have acted reluctantly and under compulsion. Upon the other hand, it is admitted in the brief for the prosecution that the count regarding the arrest and torture of Laureano Raponoya has not been proved by the necessary two witnesses. Even so, the other two counts warrant appellant’s conviction. Adherence to the enemy is of course deducible from appellant’s overt acts, particularly from the circumstance that all those apprehended, tortured and killed were members of or suspected of having connection with the guerrilla movement. The People’s Court, however, erred in classifying the crime as treason with murder. The killing of Amando Satorre and one Segundo is charged as an element of treason, and it therefore “becomes identified with the latter crime and cannot be the subject of a separate punishment, or used in combination with treason to increase the penalty as article 48 of the Revised Penal Code provides.” (People vs. Prieto, L-399, 45 Off. Gaz., 3329.[1] See also People vs. Labra, L-886, 46 Off. Gaz., [Supp. to No. 1], 159)[2]. This notwithstanding, the death penalty is still imposable upon the appellant in view of the presence of two proven aggravating circumstances, namely, armed band and the use of torture and other atrocities on the victims, instead of the usual and less painful method of execution; but on the ground presently to be stated, said penalty necessarily has to be lowered to reclusion perpetua. Eight Justices, including the writer of this opinion, believe that the appellant merits the death penalty, but one Justice disagrees. Under article 47 of the Revised Penal Code, which provides that the death penalty shall not be imposed when all the Justices are not unanimous the in their voting as to the propriety of the imposition of the death penalty, the penalty of death cannot be imposed upon the appellant. The Judiciary Act of 1948 (No. 296), approved on June 17, 1948, however, provides that “whenever the judgment of the lower court imposes the death penalty, the case shall be determined by eight Justices of the Court”, and that, “when eight Justices fail to reach a decision as herein provided, the penalty next lower in degree than the death penalty shall be imposed” (section. 9), with the result that under this legal provision the death penalty is imposable as lone as there are eight Justices voting therefor. The majority of this Court are of the opinion that the new law may be given retroactive effect so as to cover the case at bar involving an offense committed prior to the enactment of the Judiciary Act of 1948. They argue that the matter referring to the number of Justices necessary for the imposition of the death penalty is merely one of procedure, and that unanimity was previously required in view merely of the small composition of this Court,—a reason that has ceased to exist because there are now eleven Justices. The writer hereof believes, upon the other hand, that the new law should not be given retroactive effect if it is not to be ex post facto. After the inclusion of the provisions of article 47 in the Revised Penal Code, no accused could be sentenced to death except when there was unanimity among the Justices as to the propriety of the penalty; and this requisite correspondingly accorded the accused a substantive right. It is plain, and therefore easy to see, that there can be no more substantive legal provision than that which determines the question whether or not an accused will be sentenced to death. The provision can indeed be likened to that referring to mitigating or aggravating circumstances upon which the proper period of the penalty prescribed by the Revised Penal Code is dependent. In my opinion, article 47 required unanimity in order to give the assurance that, when a death sentence is meted out, there can absolutely be no room for any doubt as to the propriety of the penalty, implied from the absence of any dissent. The following may be cited in support of the theory of the writer of this opinion:
“The crime in question was committed prior to the enforcement of Act No. 1773 of the Philippine Commission, which went into effect on the 11th of October 1907. Although the complaint was filed by the fiscal on the 18th of January, 1908, it is not lawful to attribute retroactive effect to the said Act of the Philippine Commission for the reason that, even though it refers to a matter of procedure, it does not contain any clause making it retroactive in its effects, and furthermore, the provisions thereof if applied now are prejudicial to the accused. “Hence, in view of the terms of the aforesaid article 433 of the Penal Code, the proceedings instituted by virtue of the complaint filed by the fiscal can not be sustained, as they were brought without the necessary previous complaint of the aggreived husband, and in violation of the criminal law; therefore, the said proceedings, together with the judgment rendered therein, are decidedly null and void.” (U. S. vs. Gomez and Coronel, 12 Phil., 279, 282-283.)
To give effect to the view that the Judiciary Act of 1948, should be given only prospective application, the writer hereof is constrained to switch his vote to the imposition of reclusion perpetua upon the appellant who otherwise should have deserved the penalty of death. With the modification that the appellant is sentenced to reclusion perpetua, the appealed judgment is affirmed. So ordered with costs. Pablo, Briones, and Tuason, JJ., concur. Moran, C. J., Bengzon, and Montemayor, JJ., concur in the result.