People v Hernandez

Facts:
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appealed from, but they have withdrawn their appeal.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.
A joint trial of both cases was held, after which the court
rendered the decision subject of the present appeals.
Issue:
Whether or not the defendants-appelants are liable for
the crime of conspiracy and proposal to commit rebellion
or insurrection under Art. 136 of the RPC?
Held:
The court found defendants-appellants Hernandez,
member of the Communist Party of the Philippines,
President of the Congress of Labor Organizations
(CLO), had close connections with the Secretariat of the
Communist Party and held continuous communications
with its leaders and its members, and others, 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.
In the testimonies shown in court, 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.
However, in their appeal, defendants-appellants Amado
V. Hernandez, Juan J. Cruz, Amado Racanday and
Genaro de la Cruz are absolved from the charges
contained in the information, with their proportionate
share of the costs de oficio.
But other defendants-appellants, namely, Julian
Lumanog and Fermin Rodillas, Bayani Espiritu and
Teopista Valerio were found guilty of the crime of
conspiracy to commit rebellion, as defined and punished
in Article 136 of the Revised Penal Code, and each and
everyone of them is hereby sentenced to suffer

imprisonment for five years, four months and twenty-one

days of prision correccional, and to pay a fine of
P5,000.00, with subsidiary imprisonment in case of
insolvency and to pay their proportional share of the
costs.
Advocacy of Communism put into Action
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.
Legal considerations on the Appeal of the defendantappellants
All the other defendants were found guilty as
accomplices in the crime of rebellion as charged in the
information and were each sentenced to suffer the
penalty of 10 years and one day of prision mayor, with
the accessories provided by law, and to pay their
proportionate share of the costs.
Legal Considerations Before proceeding to consider
the appeals of the other defendants, it is believed useful
if not necessary to lay dawn the circumstances or facts
that may be determinative of their criminal responsibility
or the existence or nature thereof. To begin with, as We
have exhaustively discussed in relation to the appeal of
Hernandez, we do not believe that mere membership in
the Communist Party or in the CLO renders the member
liable, either of rebellion or of conspiracy to commit
rebellion, because mere membership and nothing more
merely implies advocacy of abstract theory or principle
without any action being induced thereby; and that such
advocacy becomes criminal only if it is coupled with
action or advocacy of action, namely, actual rebellion or
conspiracy to commit rebellion, or acts conducive thereto
or evincing the same. On the other hand, membership in
the HMB (Hukbalahap) implies participation in an actual
uprising or rebellion to secure, as the Huks pretend, the
liberation of the peasants and laboring class from
thraldom. By membership in the HMB, one already
advocates uprising and the use of force, and by such
membership he agrees or conspires that force be used
to secure the ends of the party. Such membership,
therefore, even if there is nothing more, renders the
member guilty of conspiracy to commit rebellion
punishable by law.

1. What happened:
About March 15, 1945, Amado Hernandez
and other appellants were accused of
conspiring, confederating and cooperating
with each other, as well as with the thirtyone(31) defendants charged in the criminal
cases of the Court of First Instance of Manila.
Theywere accused of being members of PKP
Community Party of the Philippines which
wasactively engaged in an armed rebellion
against the government of the Philippines.
With the party of HUKBALAHAP (Hukbo ng
Bayan Laban sa mga Hapon), they
committed thecrime of rebellion causing
murder, pillage, looting plunder, etc.,
enumerated in 13 attackson government
forces or civilians by HUKS.
2. Crime Committed:
Rebellion with multiple murder, arsons and
robberies
3. Contention of the State:
The government, headed by the Solicitor
General, argued that the gravity of thecrime
committed required the denial of bail.
Moreover, the complex crime charged by
thegovernment against Hernandez has been
successfully imposed with other
arrestedcommunist leaders and was
sentenced to life imprisonment.
4. Contention of the Accused:
An appeal prosecuted by the defendants
regarding the judgment rendered by theCFI
in Manila that rebellion cannot be a complex
crime with murder, arson or robbery.
5. Ruling:
The court ruled that murder, arson, and
robbery are mere ingredient of the crime of
rebellion as means necessary for the
perpetration of the offense. Such common
offense isabsorbed or inherent of the crime
of rebellion. Inasmuch as the acts specified
in Article 135constitutes, one single crime it
follows that said acts offer no occasion for
the application of Article 48 which requires
therefore the commission of at least two
crimes.***
HERNANDEZ DOCTRINE

: Rebellion cannot be complexed with

commoncrimes such as killings, destruction
of property, etc., committed on the occasion
and infurtherance thereof. The thinking is not
anymore correct more so that there is no
legal basisfor such rule now. Rebellion
constitutes ONLY ONE CRIME. ***
Ocampo v Abando
On 18 December 2008, petitioner Ladlad
filed with the RTC Manila a Motion to Quash
and/or Dismiss.
Petitioners Echanis (on Dec. 23,2008) and
Baylosis (on Jan. 5, 2009) filed a before the
S.C. a
petition for a special civil action for Certiorari
and prohibition
under Rule 65 of the Rules of Court seeking
the annulment of the 30 April 2008 Order of
Judge Abando and the 27 October 2008
Order of Judge Medina .
The petitions were consolidated on January
12, 2009.
The OSG was asked tocomment on the
prayer for petitioner Echaniss immediate
release. The OSG did not interpose any
objection on these conditions: that the
temporary release shall only be for the
purpose of his attendance and participation
in the formal peace negotiations between the
Government of the Republic of the
Philippines (GRP) and the CPP/NPA/NDFP, set
to begin in August 2009; and that his
temporary release shall not exceed six (6)
months. The latter condition was later
modified, such that his temporary liberty
shall continue for the duration of his actual
participation in the peace negotiations.
On 11 August 2009, the Court ordered the
provisional release of petitioner Echanis
under a P100,000 cash bond, for the purpose
of his participation in the formal peace
negotiations.
Meanwhile, the DOJ filed its Opposition to
petitioner Ladlads motion to quash before
the RTC Manila.
The motion to quash was denied by Judge
Medina.

On 9 November 2009, petitioner Ladlad filed

a special civil action for certiorari under Rule
65 of the Rules of Court seeking the
annulment of the 6 May 2009 and 27 August
2009 Orders of Judge Medina. The petition
was docketed as G.R. No. 190005.
Petitioner Ladlad filed an Urgent Motion to
Fix Bail.
Petitioner Baylosis filed A Motion to Allow
Petitioner to Post Bail.
The OSG interposed no objection to the grant
of a P100,000 cash bail to them considering
that they were consultants of the NDFP
negotiating team, which was then holding
negotiations with the GRP peace panel for
the signing of a peace accord.
The motions of Petitioners Ladlad and
Baylosis to post bail (Php 100,000) was
granted, subject to the condition that their
temporary release shall be limited to the
period of their actual participation in the
peace negotiations.
ISSUES
1. Whether the Petitioners were accorded
due process during the preliminary
investigation and in the issuance of the
warrants of arrest. 2. Whether the murder
charges against the petitioners should be
dismissed under the political offense
doctrine.
HELD
1. The Petitioners were accorded due process
during the Preliminary Investigation.
In the context of a preliminary investigation,
the right to due process of law entails the
opportunity to be heard.
The Petitioners were issued and served with
Subpoena at their last known address for
them to submit their counter-affidavits and
that of their witnesses. This is sufficient for
due process.
Section 3(d), Rule 112 of the Rules of Court,
allows Prosecutor Vivero to resolve the
complaint based on the evidence before him
if a respondent could not be subpoenaed. As
long as efforts to reach a respondent were
made, and he was given an opportunity to
present countervailing evidence, the
preliminary investigation remains valid.

Having opted to remain passive during the

preliminary investigation, petitioner Ladlad
and his counsel cannot now claim a denial of
due process, since their failure to file a
counter-affidavit was of their own doing. 2.
The determination of probable cause for the
issuance of warrants of arrest against
petitioners is addressed to the sound
discretion of Judge Abando as the trial judge
As a general rule, the trial court's exercise of
its judicial discretion should not be interfered
with in the absence of grave abuse of
discretion
Whether or not there is probable cause for
the issuance of warrants for the arrest of the
accused is a question of fact based on the
allegations in the Informations, the
Resolution of the Investigating Prosecutor,
including other documents and/or evidence
appended to the Information. 3. The political
offense doctrine is not a ground to dismiss
the charge against petitioners prior to a
determination by the trial court that the
murders were committed in furtherance of
rebellion.
Political offense doctrine - common crimes,
perpetrated in furtherance of a political
offense, are divested of their character as
"common" offenses and assume the political
complexion of the main crime of which they
are mere ingredients, and, consequently,
cannot be punished separately from the
principal offense, or complexed with the
same, to justify the imposition of a graver
penalty
Any ordinary act assumes a different nature
by being absorbed in the crime of rebellion.
A well-entrenched principle in criminal
procedure:
The institution of criminal charges, including
whom and what to charge, is addressed to
the sound discretion of the public prosecutor.
When the political offense doctrine is
asserted as a defense in the trial court, it
becomes crucial for the court to determine
whether the act of killing was done in
furtherance of a political end, and for the
political motive of the act to be conclusively
demonstrated.
Any amendment before plea, which
downgrades the nature of the offense

charged in or excludes any accused from the

complaint or information, can be made only
upon motion by the prosecutor, with notice
to the offended party and with leave of court.
The court shall state its reasons in resolving
the motion and copies of its order shall be
furnished all parties, especially the offended
party.
If it appears at any time before judgment
that a mistake has been made in charging
the proper offense, the court shall dismiss
the original complaint or information upon
the filing of a new one charging the proper
offense in accordance with Section 19, Rule
119, provided the accused shall not be
placed in double jeopardy. The court may
require the witnesses to give bail for their
appearance at the trial.
A first jeopardy attaches only after the
accused has been acquitted or convicted, or
the case has been dismissed or otherwise
terminated without his express consent, by a
competent court in a valid indictment for
which the accused has entered a valid plea
during arraignment.
Petitioners were never arraigned in Criminal
Case No. 06-944. Even before the indictment
for rebellion was filed before the RTC Makati,
petitioners Ocampo, Echanis and Ladlad had
already filed a petition before this Court to
seek the nullification of the Orders of the DOJ
denying their motion for the inhibition of the
members of the prosecution panel due to
lack of impartiality and independence.
When the indictment was filed, petitioners
Ocampo, Echanis and Ladlad filed
supplemental petitions to enjoin the
prosecution of Criminal Case No. 06-944 and
the rebellion case was dismissed. It is clear
then that a first jeopardy never had a chance
to attach.

FACTS:
On 26 August 2006, a mass grave was
discovered by elements of the 43rd Infantry
Brigade of the Philippine Army at Sitio
Sapang Daco, Barangay Kaulisihan,
Inopacan, Leyte.1The mass grave contained
skeletal remains of 67 individuals believed to
be victims of "Operation Venereal Disease"
(Operation VD) launched by members of the
Communist Party of the Philippines/New

Peoples Army/National Democratic Front of

the Philippines (CPP/NPA/NDFP) to purge their
ranks of suspected military informers.
P C/Insp. Almaden of the (PNP) Regional
Office 8 and Staff Judge Advocate Captain
Allan Tiu (Army Captain Tiu) of the 8th
Infantry Division of the Philippine Army sent
12 undated letters to the Provincial
Prosecutor of Leyte through Assistant
Provincial Prosecutor Rosulo U. Vivero
(Prosecutor Vivero).The letters requested
appropriate legal action on 12 complaintaffidavits attached therewith accusing 71
named members of the Communist Party of
the Philippines/New Peoples Army/National
Democratic Front of the Philippines
(CPP/NPA/NDFP) of murder, including
petitioners herein along with several other
unnamed members.
Also attached to the letters were the
affidavits of Zacarias Piedad,Leonardo C.
Tanaid, Floro M. Tanaid, Numeriano
Beringuel, Glecerio Roluna and Veronica P.
Tabara. They narrated that they were former
members of the CPP/NPA/NDFP.According to
them, Operation VD was ordered in 1985 by
the CPP/NPA/NDFP Central
Committee.Allegedly, petitioners Saturnino
C. Ocampo (Ocampo),Randall B. Echanis
(Echanis),Rafael G. Baylosis (Baylosis),and
Vicente P. Ladlad (Ladlad)were then
members of the Central Committee.
From 1985 to 1992, at least 100 people had
been abducted, hog-tied, tortured and
executed by members of the CPP/NPA/NDF
pursuant to Operation VD.
On the basis of the 12 letters and their
attachments, Prosecutor Vivero issued a
subpoena requiring, among others,
petitioners to submit their counter-affidavits
and those of their witnesses.Petitioner
Ocampo submitted his counteraffidavit.Petitioners Echanisand Baylosis did
not file counter-affidavits because they were
allegedly not served the copy of the
complaint and the attached documents or
evidence. Counsel of petitioner Ladlad made
a formal entry of appearance on 8 December
2006 during the preliminary investigation.
However, petitioner Ladlad did not file a
counter-affidavit because he was allegedly
not served a subpoena.

In a Resolution, Prosecutor Vivero

recommended the filing of an Information for
15 counts of multiple murder against 54
named members of the CPP/NPA/NDFP,
including petitioners herein
Prosecutor Vivero also recommended that
Zacarias Piedad, Leonardo Tanaid,
Numeriano Beringuel and Glecerio Roluna be
dropped as respondents and utilized as state
witnesses, as their testimonies were vital to
the success of the prosecution.
The Information was filed before the (RTC) of
Hilongos, Leyte, Branch 18 (RTC Hilongos,
Leyte) presided by Judge Ephrem S. Abando
(Judge Abando).
On 6 March 2007, Judge Abando issued an
Order finding probable cause "in the
commission by all mentioned accused of the
crime charged." He ordered the issuance of
warrants of arrest against them with no
recommended bail for their temporary
liberty.

Probable Cause with Prayer to Dismiss the

Case Outright and Alternative Prayer to
Recall/ Suspend Service of Warrant.
Judge Abando issued an Order denying the
motion.Petitioners Echanis and Baylosis filed
a Motion for Reconsideration but before
being able to rule thereon, Judge Abando
issued an Order transmitting the records of
Criminal Case to the Office of the Clerk of
Court, RTC Manila.
Petitioner Ladlad and Baylosis filed an Urgent
Motion to Fix Bail and a Motion to Allow
Petitioner to Post Bail respectively.The OSG
interposed no objection to the grant of
aP100,000 cash bail to them. The Court
granted the motions of petitioners Ladlad
and Baylosis and fixed their bail in the
amount ofP100,000, subject to the condition
that their temporary release shall be limited
to the period of their actual participation in
the peace negotiations
ISSUE:

On 16 March 2007, petitioner Ocampo filed a

special civil action for certiorari and
prohibition under Rule 65 of the Rules of
Court seeking the annulment of the 6 March
2007 Order of Judge Abando and the
Resolution of Prosecutor Vivero.The petition
prayed for the unconditional release of
petitioner Ocampo from PNP custody, as well
as the issuance of a temporary restraining
order/ writ of preliminary injunction to
restrain the conduct of further proceedings
during the pendency of the petition.

1. Whether or not petitioners were denied

due process during preliminary investigation
and in the issuance of the warrant of arrest;

Petitioner Ocampo argued that a case for

rebellion against him and 44 others
(including petitioners Echanis and
Baylosisand Ladlad) was then pending before
the RTC Makati, Branch 150 (RTC
Makati).Putting forward the political offense
doctrine, petitioner Ocampo argues that
common crimes, such as murder in this case,
are already absorbed by the crime of
rebellion when committed as a necessary
means, in connection with and in furtherance
of rebellion.

"The essence of due process is reasonable

opportunity to be heard and submit evidence
in support of one's defense." What is
proscribed is lack of opportunity to be heard.
Thus, one who has been afforded a chance to
present ones own side of the story cannot
claim denial of due process.

While the proceedings were suspended,

petitioner Echanis was arrested by virtue of
the warrant of arrest issued by Judge
Abando. On 1 February 2008, petitioners
Echanis and Baylosis filed a Motion for
Judicial Reinvestigation/ Determination of

2. Whether the murder charges against

petitioners should be dismissed under the
political offense doctrine.
HELD: The petition was denied.
POLITICAL LAW Due process
A. Preliminary Investigation

Majority of the respondents did not submit

their counter-affidavits because they could
no longer be found in their last known
address, per return of the subpoenas. On the
other hand, Saturnino Ocampo @ Satur,
Fides Lim, Maureen Palejaro and Ruben
Manatad submitted their Counter-Affidavits.
However, Vicente Ladlad and Jasmin
Jerusalem failed to submit the required
Counter Affidavits in spite entry of
appearance by their respective counsels.

Section 3(d), Rule 112 of the Rules of Court,

allows Prosecutor Vivero to resolve the
complaint based on the evidence before him
if a respondent could not be subpoenaed. As
long as efforts to reach a respondent were
made, and he was given an opportunity to
present countervailing evidence, the
preliminary investigation remains valid.
In this case, the Resolution stated that
efforts were undertaken to serve subpoenas
on the named respondents at their last
known addresses. This is sufficient for due
process. It was only because a majority of
them could no longer be found at their last
known addresses that they were not served
copies of the complaint and the attached
documents or evidence.
Petitioner Ladlad, through his counsel, had
every opportunity to secure copies of the
complaint after his counsels formal entry of
appearance and, thereafter, to participate
fully in the preliminary investigation. Instead,
he refused to participate.
Neither can we uphold petitioner Ocampos
contention that he was denied the right to be
heard. For him to claim that he was denied
due process by not being furnished a copy of
the Supplemental Affidavit of Zacarias
Piedad would imply that the entire case of
the prosecution rested on the Supplemental
Affidavit. The OSG has asserted that the
indictment of petitioner Ocampo was based
on the collective affidavits of several other
witnesses attesting to the allegation that he
was a member of the CPP/NPA/NDFP Central
Committee, which had ordered the launch of
Operation VD.
B. Issuance of the Warrants of Arrest
Article III, Section 2 of the Constitution
provides that "no search warrant or warrant
of arrest shall issue except upon probable
cause to be determined personally by the
judge after examination under oath or
affirmation of the complainant and the
witnesses he may produce."
Petitioner Ocampo alleges that Judge Abando
did not comply with the requirements of the
Constitution in finding the existence of
probable cause for the issuance of warrants
of arrest against petitioners.
Probable cause for the issuance of a warrant
of arrest has been defined as "such facts and

circumstances which would lead a

reasonably discreet and prudent man to
believe that an offense has been committed
by the person sought to be arrested." Allado
v. Diokno, G.R. No. 113630, May 5,
1994.Although the Constitution provides that
probable cause shall be determined by the
judge after an examination under oath or an
affirmation of the complainant and the
witnesses, we have ruled that a hearing is
not necessary for the determination thereof.
In fact, the judges personal examination of
the complainant and the witnesses is not
mandatory and indispensable for
determining the aptness of issuing a warrant
of arrest.
It is enough that the judge personally
evaluates the prosecutors report and
supporting documents showing the existence
of probable cause for the indictment and, on
the basis thereof, issue a warrant of arrest;
or if, on the basis of his evaluation, he finds
no probable cause, to disregard the
prosecutor's resolution and require the
submission of additional affidavits of
witnesses to aid him in determining its
existence. Delos Santos-Reyes v. Montesa, Jr.
317 Phil. 101
The determination of probable cause for the
issuance of warrants of arrest against
petitioners is addressed to the sound
discretion of Judge Abando as the trial judge.
CRIMINAL LAW - political offense doctrine
Under the political offense doctrine,
"common crimes, perpetrated in furtherance
of a political offense, are divested of their
character as "common" offenses and assume
the political complexion of the main crime of
which they are mere ingredients, and,
consequently, cannot be punished separately
from the principal offense, or complexed with
the same, to justify the imposition of a
graver penalty." People v. Hernandez, 99 Phil.
515
Any ordinary act assumes a different nature
by being absorbed in the crime of
rebellion.Thus, when a killing is committed in
furtherance of rebellion, the killing is not
homicide or murder. Rather, the killing
assumes the political complexion of rebellion
as its mere ingredient and must be
prosecuted and punished as rebellion alone.

But when the political offense doctrine is

asserted as a defense in the trial court, it
becomes crucial for the court to determine
whether the act of killing was done in
furtherance of a political end, and for the
political motive of the act to be conclusively
demonstrated.
REMEDIAL LAW Amendment or Substitution
Office of the Provincial Prosecutor of
Zamboanga Del Norte v. CA, 401 Phil 905 if
during trial, petitioners are able to show that
the alleged murders were indeed committed
in furtherance of rebellion, Section 14, Rule
110 of the Rules of Court provides the
remedy of Amendment or substitution.
Thus, if it is shown that the proper charge
against petitioners should have been simple
rebellion, the trial court shall dismiss the
murder charges upon the filing of the
Information for simple rebellion, as long as
petitioners would not be placed in double
jeopardy.
People v Lovedioro
FACTS OF THE CASE:
Elias Lovedioro with 3 other companions
fatally shot SPO3 Jesus Lucilo while Lucilo
was walking along Burgos St. away from
Daraga, Albay Public Market. The victim died
on the same day from massive blood loss. On
November 6, 1992, Elias Lovedioro was then
charged of the crime of murder, and
subsequently found guilty. Lovedioro then
appealed the decision, contesting the verdict
of murder instead of rebellion. It was
confirmed by the prosecutions principal
witness that Lovedioro was a member of the
New Peoples Army.
ISSUES OF THE CASE:
Was the RTC correct in holding Lovedioro
liable for the crime of murder, instead of
rebellion?
- Yes. Because, overt acts and purpose are
essential components of the crime of
rebellion, with either of these elements
wanting, the crime of rebellion does not
exist.
- Political motive should be established
before a person charged with a common
crime- alleging rebellion in order to lessen
the possible imposable penalty- could benefit

from the laws relatively benign attitude

towards political crimes. If no political motive
is established or proved, the accused should
be convicted of the common crime and not
of rebellion.
- In cases of rebellion, motive relates to the
act, and mere membership in an
organization dedicated to the furtherance of
rebellion would not, by and of itself suffice.
- The killing of the victim, as observed by the
Solicitor General, offered no contribution to
the achievement of the NPAs subversive
aims, in fact, there were no known acts of
the victims that can be considered as
offending to the NPA.
- Evidence shows that Lovedioros allegation
of membership to the N.P.A was conveniently
infused to mitigate the penalty imposable
upon him.
HELD:
WHEREFORE, PREMISES CONSIDERED, the
trial court's decision dated September 14,
1993, sentencing the accused of Murder is
hereby AFFIRMED, in toto.

Facts:
Off-duty policeman SPO3 Jesus Lucilo was
walking along Burgos St., away from the
Daraga, Albay Public Market when a man
suddenly walked beside him, pulled a .45
caliber gun from his waist, aimed the gun at
the policeman's right ear and fired. The man
who shot Lucilo had three other companions
with him, one of whom shot the fallen
policeman four times as he lay on the
ground. After taking the latter's gun, the man
and his companions boarded a tricycle and
fled.
The incident was witnessed from a distance
of about nine meters by Nestor Armenta, a
25 year old welder from Pilar, Sorsogon, who
claimed that he knew both the victim and
the man who fired the fatal shot. Armenta
identified the man who fired at the deceased
as Elias Lovedioro y Castro, his nephew
(appellant's father was his first cousin) and
alleged that he knew the victim from the fact

that the latter was a resident of

Bagumbayan.
Lucilo died on the same day of massive blood
loss from multiple gunshot wounds on the
face, the chest, and other parts of the body.
On autopsy, the municipal health officer
established the cause of death as
hypovolemic shock.

under Art. 248 of the Revised Penal Code. In

the absence of any mitigating and
aggravating circumstances, the trial court
was correct in imposing the penalty of
reclusion perpetua together with all the
accessories provided by law. The trial court's
decision dated September 14, 1993,
sentencing the accused of Murder is hereby
AFFIRMED.

Issue:
Whether or not accused-appellant committed
Rebellion under Art. 134 and 135 or Murder
under Article 248 of the RPC?
Held:
The court finds the accused ELIAS
LOVEDIORO guilty beyond reasonable doubt
as principal, acting in conspiracy with his coaccused who are still at large, of the crime of
murder, defined and penalized under Article
248 of the Revised Penal Code, and hereby
sentences him to suffer the penalty of
Reclusion Perpetua with all the accessories
provided by law; to pay the heirs of the
deceased SPO3 Jesus Lucilo through the
widow, Mrs. Remeline Lucilo, the amount of
Fifty Thousand (P50,000.00) Pesos
representing the civil indemnity for death; to
pay the said widow the sum of Thirty
Thousand (P30,000.00) Pesos representing
reasonable moral damages; and to pay the
said widow the sum of Eighteen Thousand
Five Hundred Eighty-Eight (P18,588.00)
Pesos, representing actual damages, without
subsidiary imprisonment however, in case of
insolvency on the part of the said accused.
In his appeal, appellant cites the testimony
of the prosecution's principal witness, Nestor
Armenta, as supporting his claim that he
should have been charged with the crime of
rebellion, not murder. In his Brief, he
asseverates that Armenta, a police informer,
identified him as a member of the New
People's Army.
However, the appellant's claim regarding the
political color attending the commission of
the crime being a matter of defense, its
viability depends on his sole and
unsupported testimony. Finally, treachery
was adequately proved in the court below.
The attack delivered by appellant was
sudden, and without warning of any kind. 41
The killing having been qualified by
treachery, the crime committed is murder

Justo v CA
This is an appeal from the decision of the
Court of Appeals affirming the judgment of
the Court of First Instance of Ilocos Norte
finding Petitioner Severino P. Justo guilty of
the crime of assault upon a person in
authority.
The Court of Appeals found the following
facts to have been established.
The offended party Nemesio B. de la Cuesta
is a duly appointed district supervisor of the
Bureau of Public Schools, with station at
Sarrat, Ilocos Norte. Between 9:00 and 10:00
a.m. on October 16, 1950, he went to the
division office in Laoag, Ilocos Norte, in
answer to a call from said office, in order to
revise the plantilla of his district comprising
the towns of Sarrat and Piddig. At about
11:25 a.m., De la Cuesta was leaving the
office in order to take his meal when he saw
the Appellant conversing with Severino
Caridad, academic supervisor. Appellant
requested De la Cuesta to go with him and
Caridad to the office of the latter. They did
and in the office of Caridad, the Appellant
asked about the possibility of
accommodating Miss Racela as a teacher in
the district of De la Cuesta. Caridad said that
there was no vacancy, except that of the
position of shop teacher. Upon hearing
Caridads answer, the Appellant sharply
addressed the complainant thus: Shet, you
are a double crosser. One who cannot keep
his promise. The Appellant then grabbed a
lead paper weight from the table of Caridad
and challenged the offended party to go out.
The Appellant left Caridads office, followed
by De la Cuesta. When they were in front of
the table of one Carlos Bueno, a clerk in the
division office, De la Cuesta asked the
Appellant to put down the paper weight but
instead the Appellant grabbed the neck and
collar of the polo shirt of the complainant

which was torn. Carlos Bueno separated the

protagonists, but not before the complainant
had boxed the Appellant several times.
(Petitioners Brief, pp. 17-18).
The present appeal is directed against that
part of the decision of the Court of Appeals
which says:
It is argued by Counsel, however, that when
the complainant accepted the challenge to a
fight and followed the Appellant out of the
room of Mr. Caridad, the offended party was
no longer performing his duty as a person in
authority. There is no merit in this
contention. The challenge was the result of
the heated discussion between the
complainant and the Appellant occasioned
by the latters disappointment when he was
told that Miss Racela could not be
accommodated in the district of the former
as there was no more vacancy in said district
except that of a shop teacher. Be this as it
may, when the Appellant grabbed the neck
and collar of the shirt of the complainant,
which is actually laying hands upon a person
in authority, he did so while the latter was
engaged in the performance of his duties as
the occasion of such performance, to
wit:chanroblesvirtuallawlibrary his failure to
accommodate Miss Racela as a teacher in his
district as he had supposedly promised the
Appellant. (Petitioners Brief, pp. 22-23.)
Petitioner argues:
(1) that when the complainant accepted his
challenge to fight outside and followed him
out of the room of Mr. Caridad where they
had a verbal clash, he (complainant)
disrobed himself of the mantle of authority
and waived the privilege of protection as a
person in authority; and
(2) that the Court of Appeals erred in not
holding that there was no unlawful
aggression on Petitioners part because there
was a mutual agreement to fight.
Neither argument is tenable. The character
of person in authority is not assumed or laid
off at will, but attaches to a public official
until he ceases to be in office. Assuming that
the complainant was not actually performing
the duties of his office when assaulted, this
fact does not bar the existence of the crime
of assault upon a person in authority; so long
as the impelling motive of the attack is the

performance of official duty. This is apparent

from the phraseology of Article 148 of our
Revised Penal Code, in penalizing attacks
upon person in authority while engaged in
the performance of official duties or on
occasion of such performance, the words
on occasion signifying because or by
reason of the past performance of official
duty, even if at the very time of the assault
no official duty was being discharged (People
vs. Garcia, 20 Phil., 358; Sent. of the Tribunal
Supremo of Spain, 24 November 1874; 26
December 1877; 13 June 1882 and 31
December 1896).
Thus, the Supreme Court of Spain has ruled
that:
No es razon apreciable para dejar de
constituir el delito de atentado el que no
estuviera el guarda en el termino en que
ejercia sus funciones, pues resultado que se
ejecuto con ocasion de ellas, esta
circunstancias siempre es suficiente, por si
sola, para constituir el atentado, sin tener en
cuenta el sitio en que haya ocurrido. (Sent.
13 de Junio de 1882) (1 Hidalgo, Codigo
Penal, 642- 643).
No other construction is compatible with the
evident purpose of the law that public
officials and their agents should be able to
discharge their official duties without being
haunted by the fear of being assaulted or
injured by reason thereof.
The argument that the offended party, De la
Cuesta, cannot claim to have been unlawfully
attacked because he had accepted the
accuseds challenge to fight, overlooks the
circumstance that as found by the Court of
Appeals, the challenge was to go out, i.e.,
to fight outside the building, it not being
logical that the fight should be held inside
the office building in the plain view of
subordinate employees. Even applying the
rules in duelling cases, it is manifest that an
aggression ahead of the stipulated time and
place for the encounter would be unlawful;
chan roblesvirtualawlibraryto hold otherwise
would be to sanction unexpected assaults
contrary to all sense of loyalty and fair play.
In the present case, assuming that De la
Cuesta accepted the challenge of the
accused, the facts clearly indicate that he
was merely on his way out to fight the
accused when the latter violently lay hands
upon him. The acceptance of the challenge

did not place on the offended party the

burden of preparing to meet an assault at
any time even before reaching the appointed
place for the agreed encounter, and any
such aggression was patently illegal.
Appellants position would be plausible if the

complaining official had been the one who

issued the challenge to fight; but here the
reverse precisely happened.
We find no reversible error in the decision
appealed from, and the same is hereby
affirmed. Costs against Appellant.