FIRST DIVISION

[G.R. No. L-8926. June 29, 1957.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs . FERNANDITO

TOGONON, ET. AL. , defendants-appellants.

Alfredo R. Illenberger for appellants.

First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Augusto C.
Luciano for appellee.

SYLLABUS

1. CRIMINAL LAW; REBELLION WITH MURDER WHEN THE LATTER WAS

COMMITTED IN FURTHERANCE OF FORMER. — Where it appears that murder was
perpetrated in furtherance of rebellion, the Court has no authority to convict the
accused of murder as a separate crime.

DECISION

REYES , A. , J : p

In an information led in 1952 by the provincial scal of Iloilo in the Court of First
Instance of that province, 94 persons were accused of "the crime of rebellion with
multiple murder, arson, kidnapping, rape, robbery and physical injuries." Only some of
the accused were tried, the great majority being still at large. Of those tried some were
acquitted and some convicted. Among those convicted were Fernandito Togonon alias
Andres Aldeguer and Coronacion Chiva alias Walingwaling.

Togonon was found by the trial judge to have joined the Huks — a group of
persons who have risen publicly and taken arms against the Government for the
purpose of removing from the allegiance to said Government the territory of the
Philippine Islands - and to have participated in their activities in furtherance of that end,
especially in the killing of the Dolinog brothers — Juan and Abundio — who, for having
denounced the Huks to the Philippine Constabulary, were beheaded by Togonon while
they had their hands bound. Being, however, of the opinion that the crime of rebellion
cannot be complexed with murder, the trial judge pronounced Togonon guilty of two
separate offenses, namely, simple rebellion and double murder, imposing upon him, for
the crime of rebellion alone, the penalty of 6 years and 1 day of prision mayor, and, for
the crime of double murder, an indeterminate penalty of 12 years and 1 day of prision
mayor to 17 years, 4 months and 1 day of reclusion temporal, plus indemnity to the
heirs of each of the deceased.
Coronacion Chiva, on her part, was found guilty only of simple rebellion — in
consonance, obviously, with the manifestation which, as stated in the decision of the
Court below, the provincial scal made before the commencement of the trial to the
effect that he was accusing the defendants, except Togonon, of having committed that
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 crime only — and for that crime she was sentenced to a penalty of 6 years and 1 day of
prision mayor.
Both Togonon and Chiva appealed to the Court of Appeals; but that court has
certi ed the case to us, stating that Togonon's appeal raises a question of jurisdiction
and that this appellant would have to be sentenced to life imprisonment or death
should it be held that the crime of rebellion could be complexed with murder, while the
case against the other appellant Chiva "arose out of the same occurrence or occasion
as that giving rise to the more serious offense."
As to the appeal of Togonon, the brief led on his behalf states that he is not
appealing from his conviction for rebellion but only from that part of the sentence
which further declares him guilty of murder. That manifestation dispenses with the
necessity of our going into the evidence on rebellion and gives nality to appellant's
conviction for that crime.
Anent the conviction for murder, the Government presented proof to the effect
that some time in April, 1950, Togonon, with other Huks, held a meeting in the house of
Eleno Dolinog in the barrio of Oyung, municipality of Libacao, Capiz province, and asked
the people there for foodstuff, such as rice, chickens and pigs, at the same time
warning them, on pain of having their heads cut off, not to report the presence of Huks
in those parts to the constabulary; that disregarding the warning, Eleno Dolinog's two
sons — Juan and Abundio — denounced the Huks to the local constabulary detachment,
with the result that the Huks were ambushed by the constabulary soldiers; that in
retaliation for what the Dolinog brothers had done, a group of Huks led by Togonon
returned to the barrio and apprehended them and then with their hands bound, Togonon
cut off their heads; that thereafter, Togonon and his companions took everything they
could use from Dolinog's house.
Denying the imputation of murder, Togonon disclaimed any part in the killing of
the Dolinog brothers. And based on his protestation of innocence and on the further
claim that the killing was already absorbed in the crime of rebellion as something done
in furtherance thereof, and that, in any event, the said killing was perpetrated outside the
territorial jurisdiction of the trial court, the defense now contends that the conviction for
murder should be annulled.
After going over the record we nd that Togonon's conviction for murder cannot
stand. While there appears to be clear proof that it was this accused who beheaded the
Dolinog brothers, there is no denying the fact that the act was perpetrated in
furtherance of the rebellion and outside the territorial jurisdiction of the trial court. That
court, therefore, had no authority to convict him of murder as a separate crime.
The Solicitor General, however, recommends that Togonon should be convicted
of the complex crime of rebellion with robbery and double murder. To this we cannot
agree. In line with our resolution in the case of People vs. Hernandez, et al., (99 Phil.,
515; 52 Off. Gaz., [10] 4612) we have in the case of People vs. Geronimo, et al., (100
Phil., 90; 53 Off. Gaz., 68) made the following pronouncement:
". . . As in treason where both intent and overt act are necessary, the crime
of rebellion is integrated by the coexistence of both the armed uprising for the
purposes expressed in Art. 123 of the Revised Penal Code, and the overt acts of
violence described in the first paragraph of Art. 135. That both purpose and overt
acts are essential components of one crime, and that without either of them the
crime of rebellion legally does not exist, is shown by the absence of any penalty
attached to Art. 134. It follows, therefore, that any or all of the acts described in
Art. 135, when committed as a means to or in furtherance of the subversive ends
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 described in Art. 134, become absorbed in the crime of rebellion, and cannot be
regarded or penalized as distinct crimes in themselves. In law they are part and
parcel of the rebellion itself, and cannot be considered as giving rise to a separate
crime that, under Art. 48 of the Code, would constitute a complex one with that of
rebellion."
Consistently with the above pronouncement, the recommendation to convict Togonon
of rebellion with robbery and double murder must be rejected, as must also the view
taken by the trial court that this appellant could, in addition to his conviction for
rebellion, be furthermore declared guilty of murder despite the fact that the latter
offense was proved to have been committed in furtherance of the former, with the
further circumstance that the court below had no jurisdiction to try him of that separate
offense because the same was committed outside its territorial jurisdiction. It should
here be recorded, however, that the dissenting justices in the cases of Hernandez and
Geronimo see no reason for altering their opinion on the question of whether or not the
crime of rebellion may be complex with murder and other crimes and that they sign the
present decision in so far as it is not inconsistent with the view expressed by them in
those cases.
As to the case against Coronacion Chiva, it is established by the testimony of the
witnesses Francisco Galilea, Alfonso Hernaez, Igmedio Digdigan and Crispulo Fabillon,
four surrendered Huks who testi ed for the prosecution, that this appellant was with
them in the mountains of Lambunao, Iloilo in 1950; that she became an o cer of the
Section Organization Committee (SOC) of the Huk organization in that region and that
as such she collected supplies from the barrio people for the support of the Huks; that
she later became chairman of the Huk medical corps and in that capacity devoted
herself to the cure of wounded Huk soldiers; that she later became treasurer; that she
became the common-law wife of her co-appellant Fernandito Togonon and that she
used to go around armed with a revolver given her for her personal protection; but that
she did not participate in the raids conducted by the Huks.
The testimony of the said witnesses is objected to on the grounds that as
declarations of co-conspirators it is not admissible against her as proof that she was in
the conspiracy without that conspiracy being rst established by other evidence. In
support of this objection, counsel cites section 12 of Rule 123, which says that "the act
or declaration of a conspirator relating to the conspiracy and during its existence, may
be given in evidence against the co- conspirator after the conspiracy is shown by
evidence other than such act or declaration." But the objection is without merit,
because, as already held by this Court, the section refers to an extrajudicial declaration
of a co-conspirator — not to his testimony by way of direct evidence (Gardiner vs.
Magsalin, et al., 73 Phil. 114).
Testifying in her own behalf, this appellant claimed that she was not herself a
Huk; that what happened was that in 1950 she was kidnapped from her barrio and
brought to the mountains by Alfonso Hernaez alias Atila and then delivered to Huk
Commander Nery Oti; that thereafter she lived maritally without bene t of marriage
with her co-appellant Togonon; that being already under his power she came to love
him by force of circumstances; that she could not return to her barrio because she was
under constant surveillance; that as the constabulary forces were conducting continued
raids against the Huks and she was considered as one of these although in reality she
was not, she decided to give herself up and so in April, 1952 she surrendered together
with her companions Deogracias Casipe and Francisco Castigador, she giving up her
revolver and they their carbines.

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 It may well be true that this appellant, as she herself has testi ed and as the trial
court has found, had been kidnapped by the Huks from her barrio and taken to the
mountains. But even then, the evidence leaves no room for doubt that she thereafter
became a real Huk by joining the Huk organization which had taken up arms against the
Government for the purpose of overthrowing it, held important o ces therein and took
active part in some of its activities, such as the gathering or commandeering of
supplies for the maintenance of the organization and the holding of meetings in
different barrios for the purpose of winning the country people to the Huk cause. This is
su cient to make her guilty of rebellion. Considering, however, that, as testi ed to by
one of the government witnesses, she did not take part in the raids conducted by her
fellow-Huks, and taking also into account the circumstances under which she became
identi ed with the Huks, we are inclined to yield to counsel's plea that she is entitled to
the mitigating circumstance mentioned in paragraph 13 of the Revised Penal Code in
that she "had no intention to commit so grave a wrong as that committed." This,
together with the circumstance of voluntary surrender, which was appreciated by the
lower court and amply supported by proof, entitles her to a penalty next lower in degree
to that prescribed by law, which is prision mayor.
Wherefore, the judgment below, in so far as the appellants Fernandito Togonon
and Coronacion Chiva are concerned, is modi ed as follows: Fernandito Togonon
stands convicted only of simple rebellion and to suffer the corresponding penalty
imposed by the lower court for that crime, that is, 6 years and 1 day of prision mayor;
but his conviction for double murder is annuled and set aside. Coronacion Chiva is
likewise convicted of simple rebellion, and considering the presence of two mitigating
circumstances, not offset by any aggravating circumstance, the penalty imposed upon
her is reduced to 2 years, 4 months and 1 day of prision correccional with a ne of
P5,000.
Without costs in this instance.
Paras, C.J., Bengzon, Bautista Angelo, Concepcion, Reyes, J.B.L. and Felix, JJ.,
concur.

Separate Opinions
MONTEMAYOR , J., concurring and dissenting :

I concur as regards appellant Chiva. But with respect to appellant Togonon, I

dissent, believing that he is guilty of the complex crime of rebellion with murder etc.
according to my dissenting opinion in the case of People vs. Hernandez, (99 Phil., 515).

LABRADOR , J., dissenting :

I dissent for the reason stated in the dissenting opinion of Mr. Justice
Montemayor in the case of People vs. Hernandez, G. R. No. L- 6025, in which dissent I
concurred.

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