United States Supreme Court

CRAMER v. UNITED STATES, (1945)

No. 13
Argued: November 6, 1944 Decided: April 23, 1945
[325 U.S. 1, 2] Mr. Harold R. Medina, of New York City, for petitioner.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.

[325 U.S. 1, 3]

Mr. Justice JACKSON delivered the opinion of the Court.

Anthony Cramer, the petitioner, stands convicted of violating Section 1 of the Criminal Code, which
provides: 'Whoever, owing allegiance to the United States, levies war against them or adheres to their
enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason.' 1

Cramer owed allegiance to the United States. A German by birth, he had been a resident of the United
States since 1925 and was naturalized in 1936. Prosecution resulted from his association with two of
the German saboteurs who in June 1942 landed on our shores from enemy submarines to disrupt
industry in the United States and whose cases we considered in Ex parte Quirin, 317 U.S. 1 , 63 S.Ct. 1.
One of those, spared from execution, appeared as a government witness on the trial of Cramer. He
testified that Werner Thiel and Edward Kerling were members of that sabotage crew, detailed their plot,
and described their preparations for its consummation.

Cramer was conscripted into and served in the German Army against the United States in 1918. After
the war he came to this country, intending to remain permanently. So far as appears, he has been of
good behavior, never before in trouble with the law. He was studious and intelligent, earning $ 45 a
week for work in a boiler room and living accordingly.

There was no evidence, and the Government makes no claim, that he had foreknowledge that the
saboteurs were coming to this country or that he came into association with them by prearrangement.
Cramer, however, had known intimately the saboteur Werner Thiel while the latter lived in this
country. They had worked together, [325 U.S. 1, 4] roomed together, and jointly had ventured in a
small and luckless delicatessen enterprise. Thiel early and frankly avowed adherence to the National
Socialist movement in Germany; he foresaw the war and returned in 1941 for the purpose of helping
Germany. Cramer did not do so. How much he sympathized with the doctrines of the Nazi Party is not
clear. He became at one time, in Indiana, a member and officer of the Friends of New Germany, which
was a predecessor of the Bund. However, he withdrew in 1935 before it became the Bund. He says
there was some swindle about it that he did not like and also that he did not like their drilling and
'radical activities.' In 1936 he made a trip to Germany, attended the Olympic Games, and saw some of
the Bundsmen from this country who went there at that time for conferences with Nazi Party officials.
There is no suggestion that Cramer while there had any such associations. He does not appear to have
been regarded as a person of that consequence. His friends and associates in this country were largely
German. His social life in New York City, where he recently had lived, seems to have been centered
around Kolping House, a German-Catholic recreational center.

Cramer retained a strong affection for his fatherland. He corresponded in German with his family and
friends there. Before the United States entered the war he expressed strong sympathy with Germany in
its conflict with other European powers. Before the attack upon Pearl Harbor, Cramer openly opposed
participation by this country in the war against Germany. He refused to work on war materials. He
expressed concern about being drafted into our army and 'misused' for purposes of 'world conquest.'
There is no proof, however, except for the matter charged in the indictment, of any act or utterance
disloyal to this country after we entered the war. [325 U.S. 1, 5] Coming down to the time of the
alleged treason, the main facts, as related on the witness stand by Cramer, are not seriously in dispute.
He was living in New York and in response to a cryptic note left under his door, which did not mention
Thiel, he went to the Grand Central Station. There Thiel appeared. Cramer had supposed that Thiel was
in Germany, knowing that he had left the United States shortly before the war to go there. Together
they went to public places and had some drinks. Cramer denies that Thiel revealed his mission of
sabotage. Cramer said to Thiel that he must have come to America by submarine, but Thiel refused to
confirm it, although his attitude increased Cramer's suspicion. Thiel promised to tell later how he came
to this country. Thiel asked about a girl who was a mutual acquaintance and whom Thiel had engaged
to marry previous to his going to Germany. Cramer knew where she was, and offered to and did write
to her to come to New York, without disclosing in the letter that Thiel had arrived. Thiel said that he
had in his possession about $3600, but did not disclose that it was provided by the German
Government, saying only that one could get money in Germany if he had the right connections. Thiel
owed Cramer an old debt of $200. He gave Cramer his money belt containing some $3600, from which
Cramer was to be paid. Cramer agreed to and did place the rest in his own safe deposit box, except a
sum which he kept in his room in case Thiel should want it quickly.

After the second of these meetings Thiel and Kerling, who was present briefly at one meeting, were
arrested. Cramer's expectation of meeting Thiel later and of bringing him and his fiancee together was
foiled. Shortly thereafter Cramer was arrested, tried, and found guilty. The trial judge at the time of
sentencing said:

'I shall not impose the maximum penalty of death. It does not appear that this defendant Cramer was
aware[325 U.S. 1, 6] that Thiel and Kerling were in possession of explosives or other means for
destroying factories and property in the United States or planned to do that.
'From the evidence it appears that Cramer had no more guilty knowledge of any subversive purposes on
the part of Thiel or Kerling than a vague idea that they came here for the purpose of organizing pro-
German propaganda and agitation. If there were any proof that they had confided in him what their
real purposes were, or that he knew, or believed what they really were, I should not hesitate to impose
the death penalty.'
Cramer's case raises questions as to application of the Constitutional provision that 'Treason against the
United States shall consist only in levying War against them, or in adhering to their Enemies, giving
them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.' 2

Cramer's contention may be well stated in words of Judge Learned Hand in United States v. Robinson:3

'Nevertheless a question may indeed be raised whether the prosecution may lay as an overt act a step
taken in execution of the traitorous design, innocent in itself, and getting its treasonable character only
from some covert and undeclared intent. It is true that in prosecutions for conspiracy under our federal
statute it is well settled that any step in performance of the conspiracy is enough, though it is innocent
except for its relations to the agreement. I doubt very much whether that rule has any application to the
case of treason, where the requirement affected the character of the pleading and proof, rather than
accorded a season of repentance before the crime should be complete. Lord Reading in his charge
in [325 U.S. 1, 7] Casement's Case uses language which accords with my understanding:
"Overt acts are such acts as manifest a criminal intention and tend towards the accomplishment of the
criminal object. They are acts by which the purpose is manifested and the means by which it is intended
to be fulfilled."4
The Government, however, contends for, and the court below has affirmed, this conviction upon a
contrary principle. 5 It said 'We believe in short that no more need be laid for an overt act of treason
than for an overt act of conspiracy. ... Hence we hold the overt acts relied on were sufficient to be
submitted to the jury, even though they perhaps may have appeared as innocent on their face.' A
similar conclusion was reached in United States v. Fricke; 6 it is: 'An overt act in itself may be a
perfectly innocent act standing by itself; it must be in some manner in furtherance of the crime.'

As lower courts thus have taken conflicting positions, or, where the issue was less clearly drawn, have
dealt with the problem ambiguously,7 we granted certiorari8 and after argument at the October 1943
Term we invited [325 U.S. 1, 8] reargument addressed to specific questions. 9 Since our primary
question here is the meaning of the Constitutional provision, we turn to its solution before considering
its application to the facts of this case.

I.

When our forefathers took up the task of forming an independent political organization for New World
society, no one of them appears to have doubted that to bring into being a new government would
originate a new allegiance for its citizens and inhabitants. Nor were they reluctant to punish as treason
any genuine breach of allegiance, as every government time out of mind had done. The betrayal of
Washington by Arnold was fresh in mind. They were far more awake to powerful enemies with designs
on this continent than some of the intervening generations have been. England was entrenched in
Canada to the north and Spain had repossessed Florida to the south, and each had been the scene of
invasion of the Colonies; the King of France had but lately been dispossessed in the Ohio Valley; Spain
claimed the Mississippi Valley; and, except for the seaboard, the settlements were surrounded by
Indians-not negligible as enemies themselves, and especially threatening when allied to European foes.
The proposed national government could not for some years become firmly seated in the tradition or in
the habits of [325 U.S. 1, 9] the people. There is no evidence that the forefathers intended to withdraw
the treason offense from use as an effective instrument of the new nation's security against treachery
that would aid external enemies.

The forefathers also had suffered from disloyalty. Success of the Revolution had been threatened by the
adherence of a considerable part of the population to the King. The Continental Congress adopted a
resolution after a report by its 'Committee on Spies'10 which in effect declared that all persons residing
within any colony owed allegiance to it, and that if any such persons adhered to the King of Great
Britain, giving him aid and comfort, they were guilty of treason, and which urged the colonies to pass
laws for punishment of such offenders 'as shall be provably attainted of open deed.' 11 Many of the
colonies complied, and a variety of laws, mostly modeled [325 U.S. 1, 10] on English law,
resulted. 12 Some of the legislation in later years became so broad and loose as to make treason of [325
U.S. 1, 11] mere utterance of opinion. 13 Many a citizen in a time of unsettled and shifting loyalties
was thus threatened under [325 U.S. 1, 12] English law which made him guilty of treason if he
adhered to the government of his colony and also under colonial law which made him guilty of treason
if he adhered to his King. 14 Not a few of these persons were subjected to confiscation of property or
other harsh treatment by the Revolutionists under local laws; none, however, so far as appears, to
capital punishment. 15

Before this revolutionary experience there were scattered treason prosecutions in the colonies16
usually not well reported. Some colonies had adopted treason statutes modeled on English
legislation. 17 But the earlier colonial experience seems to have been regarded as of [325 U.S. 1, 13] a
piece with that of England and appears not to have much influenced the framers in their dealings with
the subject.
However, their experience with treason accusations had been many- sided. More than a few of them
were descend- [325 U.S. 1, 14] ants of those who had fled from measures against sedition and its
ecclesiastic counterpart, heresy. Now the treason offense was under revision by a Convention whose
members almost to a man had themselves been guilty of treason under any interpretation of British
law. 18 They not only had levied war against their King themselves, but they had conducted a lively
exchange of aid and comfort with France, then England's ancient enemy. Every step in the great work of
their lives from the first mild protests against kingly misrule to the final act of separation had been
taken under the threat of treason charges. 19 The Declaration of Independence may seem cryptic in
denouncing George III 'for transporting us beyond Seas to be tried for pretended offenses' but the
specific grievance was recited by the Continental Congress nearly two years before in saying that '... it
has lately been resolved in Parliament, that by force of a statute, made in the thirty-fifth year of the
reign of king Henry the eighth, colonists may be transported to England, and tried there upon
accusations for treasons, and misprisions, or concealments [325 U.S. 1, 15] of treasons committed in
the colonies; and by a late statute, such trials have been directed in cases therein mentioned.' 20

The Convention numbered among its members men familiar with government in the Old World, and
they looked back upon a long history of use and abuse of the treason charge. 21 The English stream of
thought con-[325 U.S. 1, 16] cerning treasons began to flow in fairly definable channels in 1351 with
the enactment of the great Treason Act, 25 Edw. III, Stat. 5, Ch. 2.22 That was a monumental
piece [325 U.S. 1, 17] of legislation several times referred to in the deliberations of the Convention. It
cut a bench-mark by which the English-speaking world tested the level of its thought on the subject23
until our own abrupt departure from it in [325 U.S. 1, 18] 1789, and after 600 years it still is the
living law of treason in England. Roger Casement in 1917 forfeited his life for violating it. 24 We, of
course, can make no independent judgment as to the inward meanings of the terms used in a six-
century-old statute, written in a form of Norman French that had become obsolete long before our
Revolution. We can read this statute only as our forebears read it-through the eyes of succeeding
generations of English judges, to whom it has been the core of all decision, and of common-law
commentators, to whom it has been the text. 25 [325 U.S. 1, 19] Adjudicated cases in English history
generally have dealt with the offense of compassing the monarch's death; [325 U.S. 1, 20] only eleven
reported English cases antedating the Constitution are cited as involving distinct charges of adherence
to the King's enemies. 26 When constructive treasons were not joined on the face of the indictment, it is
not possible to say how far they were joined in the minds of the judges. No decision appears to have
been a factor in the deliberations of our own Constitutional Convention. Nor does any squarely meet
our issue here, and for good reason-the Act of Edward III did not contain the two-witnesses-to- the-
same-overt act requirement which precipitates the issue here.

Historical materials are, therefore, of little help; necessity as well as desire taught a concept that differed
from all historical models in the drafting of our treason clause. Treason statutes theretofore had been
adapted to a society in which the state was personified by a king, on whose person were focused the
allegiances and loyalties of the subject. When government was made representative of the whole body
of the governed there was none to say 'I [325 U.S. 1, 21] am the State' and a concept of treason as
compassing or imagining a ruler's death was no longer fitting. Nor can it be gainsaid that the
revolutionary doctrine that the people have the right to alter or abolish their government relaxed the
loyalty which governments theretofore had demanded-dangerously diluted it, as the ruling classes of
Europe thought, for in their eyes the colonists not only committed treason, they exalted it. 27 The idea
that loyalty will ultimately be given to a government only so long as it deserves loyalty and that
opposition to its abuses is not treason28 has made our government tolerant of opposition based on
differences of opinion that in some parts of the world would have kept the hangman busy. But the basic
law of treason in this country was framed by men who, as we have seen, were taught by experience and
by history to fear abuse of the treason charge almost as much as they feared treason itself. The interplay
in [325 U.S. 1, 22] the Convention of their two fears accounts for the problem which faces us today.

II.
We turn then to the proceedings of the Constitutional Convention of 1787 so far as we have record of
them. The plan presented by Pinckney evidently proposed only that Congress should have exclusive
power to declare what should be treason and misprision of treason against the United States. 29 The
Committee on Detail, apparently not specifically instructed on the subject, reported a draft Constitution
which left no such latitude to create new treasons. It provided that: 'Treason against the United States
shall consist only in levying war against the United States, or any of them; and in adhering to the
enemies of the United States, or any of them. The Legislature of the United States shall have power to
declare the punishment of treason. No person shall be convicted of treason, unless on the testimony of
two witnesses. No attainder of treason shall work corruption of bloods, nor forfeiture, except during the
life of the person attained.' 30

This clause was discussed on August 20, 1787. Mr. Madison, who opened the discussion, 'thought the
definition too narrow. It did not appear to go as far as the Stat. of Edwd III. He did not see why more
latitude might not be left to the Legislature. It wd. be as safe in the hands of State legislatures; and it was
inconvenient to bar a discretion which experience might enlighten, and which might be applied to
good purposes as well as be abused.' 31 Mr. Mason was in favor of following the language of the
Statute of Edward III. The discussion shows some confusion as to the effect of adding the words 'giving
them aid and comfort,' some thinking their effect restrictive [325 U.S. 1, 23] and others that they gave
a more extensive meaning. However, 'Col Mason moved to insert the words 'giving (them) aid comfort',
as restrictive of 'adhering to their Enemies, &c'-the latter he thought would be otherwise too indefinite.'
The motion prevailed.

Mr. Dickenson 'wished to know what was meant by the 'testimony of two witnesses', whether they were
to be witnesses to the same overt act or to different overt acts. He thought also that proof of an overt-act
ought to be expressed as essential to the case.' Doctor Johnson also 'considered ... that something should
be inserted in the definition concerning overt acts.'

When it was moved to insert 'to the same overt act' after the two- witnesses requirement, Madison notes
that 'Doc'r. Franklin wished this amendment to take place-prosecutions for treason were generally
virulent; and perjury too easily made use of against innocence.' James Wilson observed that 'Much may
be said on both sides. Treason may sometimes be practiced in such a manner, as to render proof
extremely difficult-as in a traitorous correspondence with an Enemy.' 32 But the motion carried.

By this sequence of proposals the treason clause of the Constitution took its present form. The temper
and attitude of the Convention toward treason prosecutions is unmistakable. It adopted every limitation
that the practice of governments had evolved or that politico-legal philos- [325 U.S. 1, 24] ophy to
that time had advanced. 33 Limitation of the treason of adherence to the enemy to cases where aid and
comfort were given and the requirement of an overt act were both found in the Statute of Edward III
praised in the writings of Coke and Blackstone, and advocated in Montesquieu's Spirit of Laws.
Likewise, the two-witness requirement had been used in other statutes,34 was advocated by
Montesquieu in all capital cases,35 and was a familiar precept of the New Testament,36 and of Mosaic
law. 37 The framers combined all of these known protections and added two of their own which had
no precedent. They wrote into the organic act of the new government a prohibition of legislative or
judicial creation of new treasons. And a venerable safeguard against false testimony was given a novel
application by requiring two witnesses to the same overt act.

District of treason prosecutions was not just a transient mood of the Revolutionists. In the century and a
half of our national existence not one execution on a federal treason conviction has taken place. Never
before has this Court had occasion to review a conviction. In the few cases that have been prosecuted
the treason clause has had its only judicial construction by individual Justices of this Court presiding at
trials on circuit or by dis-[325 U.S. 1, 25] trict or circuit judges. 38 After constitutional requirements
have been satisfied, and after juries have convicted [325 U.S. 1, 26] and courts have sentenced,
Presidents again and again have intervened to mitigate judicial severity or to pardon entirely. We have
managed to do without treason prosecutions to a degree that probably would be impossible except
while a people was singularly confident of external security and internal stability. 39 [325 U.S. 1,
27] III.

Historical materials aid interpretation chiefly in that they show two kinds of dangers against which the
framers were concerned to guard the treason offense: (1) Perversion by established authority to repress
peaceful political opposition; and (2) conviction of the innocent as a result of perjury, passion, or
inadequate evidence. The first danger could be diminished by closely circumscribing the kind of
conduct which should be treason-making the constitutional definition exclusive, making it clear, and
making the offense one not susceptible of being inferred from all sorts of insubordinations. The second
danger lay in the manner of trial and was one which would be dimin- [325 U.S. 1, 28] ished mainly
by procedural requirements-mainly but not wholly, for the hazards of trial also would be diminished by
confining the treason offense to kinds of conduct susceptible of reasonably sure proof. The concern
uppermost in the framers' minds, that mere mental attitudes or expressions should not be treason,
influenced both definition of the crime and procedure for its trial. In the proposed Constitution the first
sentence of the treason article undertook to define the offense; the second, to surround its trial with
procedural safeguards.

'Compassing' and like loose concepts of the substance of the offense had been useful tools for tyranny.
So one of the obvious things to be put into the definition of treason not consisting of actual levying of
war was that it must consist of doing something. This the draft Constitution failed to provide, for, as we
have pointed out, it defined treason40 as merely 'adhering to the enemies of the United States, or any of
them.'
Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one's own
King by forming an attachment to his enemy. Its scope was comprehensive, its requirements
indeterminate. It might be predicated on intellecutal or emotional sympathy with the for, or merely lack
of zeal in the cause of one's own country. That was not the kind of disloyalty the framers thought
should constitute treason. They promptly accepted the proposal to restrict it to cases where also there
was conduct which was 'giving them aid and comfort.'

'Aid and comfort' was defined by Lord Reading in the Casement trial comprehensively, as it should be,
and yet probably with as much precision as the nature of the matter will permit: '... an act which
strengthens or tends to strengthen the enemies of the King in the conduct of a [325 U.S. 1, 29] war
against the King, that is in law the giving of aid and comfort' and 'an act which weakens or tends to
weaken the power of the King and of the country to resist or to attack the enemies of the King and the
country ... is ... giving of aid and comfort.' Lord Reading explained it, as we think one must, in terms of
an 'act.' It is not easy, if indeed possible, to think of a way in which 'aid and comfort' and be 'given' to an
enemy except by some kind of action. Its very nature partakes of a deed or physical activity as opposed
to a mental operation.
Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and
comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or
convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and
comfort to the enemy, there is no treason. On the other hand, a citizen may take actions, which do aid
and comfort the enemy- making a speech critical of the government or opposing its measures,
profiteering, striking in defense plants or essential work, and the hundred other things which impair
our cohesion and diminish our strength- but if there is no adherence to the enemy in this, if there is no
intent to betray, there is no treason.

Having thus by definition made treason consist of something outward and visible and capable of direct
proof, the framers turned to safeguarding procedures of trial and ordained that 'No Person shall be
convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession
in open Court.' This repeats in procedural terms the concept that thoughts and attitudes alone cannot
make a treason. It need not trouble us that we find so dominant a purpose emphasized in two different
ways. But does the procedural requirement add some limitation not already present in the definition of
the crime, and if so, what? [325 U.S. 1, 30] While to prove giving of aid and comfort would require
the prosecution to show actions and deeds, if the Constitution stopped there, such acts could be inferred
from circumstantial evidence. This the framers thought would not do. 41 So they added what in effect
is a command that the overt acts must be established by direct evidence, and the direct testimony must
be that of two witnesses instead of one. In this sense the overt act procedural provision adds something,
and something important, to the definition.

Our problem begins where the Constitution ends. That instrument omits to specify what relation the
indispensable overt act must sustain to the two elements of the offense as defined: viz., adherence and
giving aid and comfort. It requires that two witnesses testify to the same overt act, and clearly enough
the act must show something toward treason, but what? Must the act be one of giving aid and comfort?
If so, how must adherence to the enemy, the disloyal state of mind, be shown?

The defendant especially challenges the sufficiency of [325 U.S. 1, 31] the overt acts to prove
treasonable intention. Questions of intent in a treason case are even more complicated than in most
criminal cases because of the peculiarity of the two different elements which together make the offense.
Of course the overt acts of aid and comfort must be intentional as distinguished from merely negligent
or undesigned ones. Intent in that limited sense is not in issue here. But to make treason the defendant
not only must intend the act, but he must intend to betray his country by means of the act. It is here that
Cramer defends. The issue is joined between conflicting theories as to how this treacherous intention
and treasonable purpose must be made to appear.

Bearing in mind that the constitutional requirement in effect in one of direct rather than circumstantial
evidence, we must give it a reasonable effect in the light of its purpose both to preserve the offense and
to protect citizens from its abuse. What is designed in the mind of an accused never is susceptible of
proof by direct testimony. If we were to hold that the disloyal and treacherous intention must be proved
by the direct testimony of two witnesses, it would be to hold that it is never provable. It seems obvious
that adherence to the enemy, in the sense of a disloyal state of mind, cannot be, and is not required to
be, proved by deposition of two witnesses.

Since intent must be inferred from conduct of some sort, we think it is permissible to draw usual
reasonable inferences as to intent from the overt acts. The law of treason, like the law of lesser crimes,
assumes every man to intend the natural consequences which one standing in his circumstances and
possessing his knowledge would reasonably expect to result from his acts. Proof that a citizen did give
aid and comfort to an enemy may well be in the circumstances sufficient evidence that he adhered to
that enemy and intended and purposed to strike at his [325 U.S. 1, 32] own country. 42 It may be
doubted whether it would be what the founders intended, or whether it would well serve any of the
ends they cherished, to hold the treason offense available to punish only those who make their
treacherous intentions more evident than may be done by rendering aid and comfort to an enemy.
Treason-insidious and dangerous treason-is the work of the shrewd and crafty more often than of the
simple and impulsive.

While of course it must be proved that the accused acted with an intention and purpose to betray or
there is no treason, we think that in some circumstances at least the overt act itself will be evidence of
the treasonable purpose and intent. But that still leaves us with exceedingly difficult problems. How
decisively must treacherous intention be made manifest in the act itself? Will a scintilla of evidenc of
traitorous intent suffice? Or must it be sufficient to convince beyond reasonable doubt? Or need it show
only that treasonable intent was more probable than not? Must the overt act be appraised for legal
sufficiency only as supported by the testimony of two witnesses, or may other evidence be thrown into
the scales to create inferences not otherwise reasonably to be drawn or to reinforce those which might
be drawn from the act itself?
It is only overt acts by the accused which the Constitution explicitly requires to be proved by the
testimony of two witnesses. It does not make other common-law evidence inadmissible nor deny its
inherent powers of persuasion. It does not forbid judging by the usual process by which the
significance of conduct often will be determined by facts which are not acts. Actions of the accused are
set [325 U.S. 1, 33] in time and place in many relationships. Environment illuminates the meaning of
acts, as context does that of words. What a man is up to may be clear from considering his bare acts by
themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of
others, the interchange between him and another, the give and take of the situation.

It would be no contribution to certainty of judgment, which is the object of the provision, to construe it
to deprive a trial court of the aid of testimony under the ordinary sanctions of verity, provided, of
course, resort is not had to evidence of less than the constitutional standard to supply deficiencies in the
constitutional measure of proof of overt acts. For it must be remembered that the constitutional
provision establishes a minimum of proof of incriminating acts, without which there can be no
conviction, but it is not otherwise a limitation on the evidence with which a jury may be persuaded that
it ought to convict. The Constitution does not exclude or set up standards to test evidence which will
show the relevant acts of persons other than the accused or their identity or enemy character or other
surrounding circumstances. Nor does it preclude any proper evidence, of non-incriminating facts about
a defendant, such for example as his nationality, naturalization, and residence.

From duly proven overt acts of aid and comfort to the enemy in their setting, it may well be that the
natural and reasonable inference of intention to betray will be warranted. The two-witness evidence of
the acts accused, together with commonlaw evidence of acts of others and of facts which are not acts,
will help to determine which among possible inferences as to the actor's knowledge, motivation, or
intent are the true ones. But the protection of the two-witness rule extends at least to all acts of the
defendant which are used to draw incriminating inferences that aid and comfort have been given. [325
U.S. 1, 34] The controversy before us has been waged in terms of intentions, but this, we think, is the
reflection of a more fundamental issue as to what is the real function of the overt act in convicting of
treason. The prisoner's contention that it alone and on its face must manifest a traitorous intention,
apart from an intention to do the act itself, would place on the overt act the whole burden of
establishing a complete treason. On the other hand, the Government's contention that it may prove by
two witnesses an apparently commonplace and insignificant act and from other circumstances create
an inference that the act was a step in treason and was done with treasonable intent really is a
contention that the function of the overt act in a treason prosecution is almost zero. It is obvious that
the function we ascribe to the overt act is significant chiefly because it measures the two-witness rule
protection to the accused and its handicap to the prosecution. If the over act or acts must go all the way
to make out the complete treason, the defendant is protected at all points by the two-witness
requirement. If the act may be an insignificant one, then the constitutional safeguards are shrunk en so
as to be applicable only at a point where they are least needed.

The very minimum function that an overt act43 must perform in a treason prosecution is that it show
sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave44 aid
and comfort to the enemy. Every act, movement, deed, and word of the defendant charged to constitute
treason must be supported [325 U.S. 1, 35] by the testimony of two witnesses. The two-witness
principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by
the testimony of a single witness. The prosecution cannot rely on evidence which does not meet the
constitutional test for overt acts to create any inference that the accused did other acts or did something
more than was shown in the overt act, in order to make a giving of aid and comfort to the enemy. The
words of the Constitution were chosen, not to make it hard to prove merely routine and everyday acts,
but to make the proof of acts that convict of treason as sure as trial processes may. When the
prosecution's case is thus established, the Constitution does not prevent presentation of corroborative or
cumulative evidence of any admissible character either to strengthen a direct case or to rebut the
testimony or inferences on behalf of defendant. The Government is not prevented from making a strong
case; it is denied a conviction on a weak one.
It may be that in some cases the overt acts, sufficient to prove giving of aid and comfort, will fall short
of showing intent to betray and that questions will then be raised as to permissible methods of proof
that we do not reach in this case. But in this and some cases we have cited where the sufficiency of the
overt acts has been challenged because they were colorless as to intent, we are persuaded the reason
intent was left in question was that the acts were really indecisive as a giving of aid and comfort. When
we deal with acts that are trivial and commonplace and hence are doubtful as to whether they gave aid
and comfort to the enemy, we are most put to it to find in other evidence a treacherous intent.

We proceed to consider the application of these principles to Cramer's case.

IV.

The indictment charged Cramer with adhering to the enemies of the United States, giving them aid and
com-[325 U.S. 1, 36] fort, and set forth ten overt acts. The prosecution withdrew seven, and three
were submitted to the jury. The overt acts which present the principal issue45 are alleged in the
following language:

'1. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New
York and within the jurisdiction of this Court, did meet with Werner Thiel and Edward John Kerling,
enemies of the United States, at the Twin Oaks Inn at Lexington Avenue and 44th Street, in the City and
State of New York, and did confer, treat, and counsel with said Werner Thiel and Edward John Kerling
for a period of time for the purpose of giving and with intent to give aid and comfort to said enemies,
Werner Thiel and Edward John Kerling.
'2. Anthony Cramer, the defendant herein, on or about June 23, 1942, at the Southern District of New
York and[325 U.S. 1, 37] within the jurisdiction of this Court, did accompany, confer, treat, and
counsel with Werner Thiel, an enemy of the United States, for a period of time at the Twin Oaks Inn at
Lexington Avenue and 44th Street, and at Thompson's Cafeteria on 42nd Street between Lexington and
Vanderbilt Avenues, both in the City and State of New York, for the purpose of giving and with intent to
give aid and comfort to said enemy, Werner Thiel.'
At the present stage of the case we need not weight their sufficiency as a matter of pleading. Whatever
the averments might have permitted the Government to prove, we now consider their adequacy on the
proof as made.

It appeared upon the trial that at all times involved in these acts Kerling and Thiel were under
surveiliance of the Federal Bureau of Investigation. By direct testimony of two or more agents it was
established that Cramer met Thiel and Kerling on the occasions and at the places charged and that they
drank together and engaged long and earnestly in conversation. This is the sum of the overt acts as
established by the testimony of two witnesses. There is no two-witness proof of what they said nor in
what language they conversed. There is no showing that Cramer gave them any information whatever
of value to their mission or indeed that he had any to give. No effort at secrecy is shown, for they met in
public places. Cramer furnished them no shelter, nothing that can be called sustance or supplies, and
there is no evidence that he gave them encouragement or counsel, or even paid for their drinks.

The Government recognizes the weakness of its proof of aid and comfort, but on this scope it urges:
'Little imagination is required to perceive the advantage such meeting would afford to enemy spies not
yet detected. Even apart from the psychological comfort which the meetings furnished Thiel and
Kerling by way of social intercourse with [325 U.S. 1, 38] one who they were confident would not
report them to the authorities, as a loyal citizen should, the meetings gave them a source of information
and an avenue for contact. It enabled them to be seen in public with a citizen above suspicion and
thereby to be mingling normally with the citizens of the country with which they were at war.' The
difficulty with this argument is that the whole purpose of the constitutional provision is to make sure
that treason conviction shall rest on direct proof of two witnesses and not on even a little imagination.
And without the use of some imagination it is difficult to perceive any advantage which this meeting
afforded to Thiel and Kerling as enemies or how it strengthened Germany or weakened the United
States in any way whatever. It may be true that the saboteurs were cultivating cramer as a potential
'source of information and an avenue for contact.' But there is no proof either by two witnesses or by
even one witness or by any circumstance that Cramer gave them information or established any
'contact' for them with any person other than an attempt to bring about a rendezvous between Thiel
and a girl, or that being 'seen in public with a citizen above suspicion' was of any assistance to the
enemy. Meeting with Cramer in public drinking places to tipple and trifle was no part of the saboteurs'
mission and did not advance it. It may well have been a digression which jeopardized its success.

The shortcomings of the overt act submitted are emphasized by contrast with others which the
indictment charged but which the prosecution withdrew for admitted insufficiency of proof. It appears
that Cramer took from Thiel for safekeeping a money belt containing about $3, 600, some $160 of
which he held in his room concealed in books for Thiel's use as needed. An old indebtedness of Thiel to
Cramer of $200 was paid from the fund, and the rest Cramer put in his safe-deposit box in a bank for
safekeeping. All of this was at Thiel's request. That Thiel [325 U.S. 1, 39] would be aided by having the
security of a safe-deposit box for his funds, plus availability of smaller amounts, and by being relieved
of the risks of carrying large sums on his person-without disclosing his presence or identity to a bank-
seems obvious. The inference of intent from such act is also very different from the intent manifest by
drinking and talking together. Taking what must have seemed a large sum of money for safekeeping is
not a usual amenity of social intercourse. That such responsibilities are undertaken and such trust
bestowed without the scratch of a pen to show it, implies some degree of mutuality and concert from
which a jury could say that aid and comfort was given and was intended. If these acts had been
submitted as overt acts of treason, and we were now required to decide whether they had been
established as required, we would have a quite different case. We would then have to decide whether
statements on the witness stand by the defendant are either 'confession in open court' or may be
counted as the testimony of one of the required two witnesses to make out otherwise insufficiently
proved 'overt acts.' But this transaction was not proven as the Government evidently hoped to do when
the indictment was obtained. The overt acts based on it were expressly withdrawn from the jury, and
Cramer has not been convicted of treason on account of such acts. We cannot sustain a conviction for
the acts submitted on the theory that, even if insufficient, some unsubmitted ones may be resorted to as
proof of treason. Evidence of the money transaction serves only to show how much went out of the case
when it was withdrawn.

The Government contends that outside of the overt acts, and by lesser degree of proof, it has shown a
treasonable intent on Cramer's part in meeting and talking with Thiel and Kerling. But if it showed him
disposed to betray, and showed that he had opportunity to do so, it still has not proved in the manner
required that he did any acts [325 U.S. 1, 40] submitted to the jury as a basis for conviction which had
the effect of betraying by giving aid and comfort. To take the intent for the deed would carry us back to
constructive treasons.

It is outside of the commonplace overt acts as proved that we must find all that convicts or convinces
either that Cramer gave aid and comfort or that he had a traitorous intention. The prosecution relied
chiefly upon the testimony of Norma Kopp, the fiancee of Thiel, as to incriminating statements made by
Cramer to her,46 upon admissions made by Cramer after his arrest to agents of the Federal Bureau of
Investigation, 47 upon letters and [325 U.S. 1, 41] documents found on search of his room by
permission after his arrest,48 and upon testimony that Cramer had [325 U.S. 1, 42] curtly refused to
buy Government bonds. 49 After denial of defendant's motion to dismiss at the close of the prosecution's
case, defendant became a witness in his own behalf and the Government obtained on cross-
examination some admissions of which it had the benefit on submission. 50 [325 U.S. 1, 43] It is not
relevant to our issue to appraise weight or credibility of the evidence apart from determining its
constitutional sufficiency. Nor is it necessary in the view we take of the more fundamental issues, to
discuss the [325 U.S. 1, 44] reservations which all of us entertain as to the admissibility of some of it
or those which some entertain as to other of it. We could conclude in favor of affirmance only if all
questions of admissibility were resolved against the prisoner. At all events much of the evidence is of
the general character whose infirmities were feared by the framers and sought to be safeguarded
against.

Most damaging is the testimony of Norma Kopp, a friend of Cramer's and one with whom, if she is to be
believed, he had been most indiscreetly confidential. Her testimony went considerably beyond that of
the agents of the Federal Bureau of Investigation as to admissions of guilty knowledge of Thiel's hostile
mission and of Cramer's sympathy with it. To the extent that his conviction rests upon such evidence,
and it does to an unknown but considerable extent, it rests upon the uncorroborated testimony of one
witness not without strong emotional interest in the drama of which Cramer's trial was a part. Other
evidence relates statements by Cramer before the United States was at war with Germany. At the time
they were uttered, however, they were not treasonable. To use pre-war expressions of opposition to
entering a war to convict of treason during the war is a dangerous procedure at best. The same may be
said about the inference of disloyal attitude created by showing that he refused to buy bonds and closed
the door in the salesman's face. Another class of evidence consists of admissions to agents of the Federal
Bureau of Investigation. They are of course, not 'confession in open court.' The Government does not
contend and could not well contend [325 U.S. 1, 45] that admissions made out of court, if otherwise
admissible, can supply a deficiency in proof of the overt act itself.

V.

The Government has urged that our initial interpretation of the treason clause should be less exacting,
lest treason be too hard to prove and the Government disabled from adequately combating the
techniques of modern warfare. But the treason offense is not the only nor can it well serve as the
principal legal weapon to vindicate our national cohesion and security. In debating this provision,
Rufus King observed to the Convention that the 'controversy relating to Treason might be of less
magnitude than was supposed; as the legislature might punish capitally under other names than
Treason.' 51 His statement holds good today. Of course we do not intimate that Congress could dispense
with the two- witness rule merely by giving the same offense another name. But the power of Congress
is in no way limited to enact prohibitions of specified acts thought detrimental to our wartime safety.
The loyal and the disloyal alike may be forbidden to do acts which place our security in peril, and the
trial thereof may be focussed upon defendant's specific intent to do those particular acts52 thus
eliminating the accusation of treachery and of general intent to betray which have such passion-
rousing potentialities. Congress repeatedly has enacted prohibitions of specific acts thought to endanger
our security53 and the practice of foreign nations with de- [325 U.S. 1, 46] fense problems more
acute than our own affords examples of others. 54

The framers' effort to compress into two sentences the law of one of the most intricate of crimes gives a
superficial appearance of clarity and simplicity which proves illusory when it is put to practical
application. There are few subjects on which the temptation to utter abstract [325 U.S. 1,
47] interpretative generalizations is greater or on which they are more to be distrusted. The little
clause is packed with controversy and difficulty. The offense is one of subtlety, and it is easy to
demonstrate lack of logic in almost any interpretation by hypothetical cases, to which real treasons
rarely will conform. The protection of the two-witness requirement, limited as it is to overt acts, may be
wholly unrelated to the real controversial factors in a case. We would be understood as speaking only
in the light of the facts and of the issues raised in the case under consideration, although that leaves
many undetermined grounds of dispute which, after the method of the common law, we may defer
until they are presented by facts which may throw greater light on their significance. Although nothing
in the conduct of Cramer's trial evokes it, a repetition of Chief Justice Marshall's warning can never be
untimely:

'As there is no crime which can more excite and agitate the passions of men than treason, no charge
demands more from the tribunal before which it is made, a deliberate and temperate inquiry. Whether
this inquiry be directed to the fact or to the law, none can be more, solemn, none more important to the
citizen or to the government; none can more affect the safety of both. ... It is therefore more safe as well
as more consonant to the principles of our constitution, that the crime of treason should not be
extended by construction to doubtful cases; and that crimes not clearly within the constitutional
definition, should receive such punishment as the legislature in its wisdom may provide.' Ex parte
Bollman, 4 Cranch 75, 125, 127.
It is not difficult to find grounds upon which to quarrel with this Constitutional provision. Perhaps the
framers placed rather more reliance on direct testimony than modern researches in psychology
warrant. Or it may be considered that such a quantitative measure of proof, such [325 U.S. 1, 48] a
mechanical calibration of evidence is a crude device at best or that its protection of innocence is too
fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether
wisely or not, is severely restrictive. It must be remembered, however, that the Constitutional
Convention was warned by James Wilson that 'Treason may sometimes be practiced in such a manner,
as to render proof extremely difficult-as in a traitorous correspondence with an Enemy.' 55 The
provision was adopted not merely in spite of the difficulties it put in the way of prosecution but because
of them. And it was not by whim or by accident, but because one of the most venerated of that
venerated group considered that 'prosecutions for treason were generally virulent.' Time has not made
the accusation of treachery less poisonous, nor the task of judging one charged with betraying the
country, including his triers, less susceptible to the influence of suspicion and rancor. The innovations
made by the forefathers in the law of treason were conceived in a faith such as Paine put in the maxim
that 'He that would make his own liberty secure must guard even his enemy from oppression; for if he
violates this duty he establishes a precedent that will reach himself.' 56 We still put trust in it.

We hold that overt acts 1 and 2 are insufficient as proved to support the judgment of conviction, which
accordingly is

REVERSED.

Mr. Justice DOUGLAS, with whom the CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice REED concur,
dissenting.

The opinion of the Court is written on a hypothetical state of facts, not on the facts presented by the
record.[325 U.S. 1, 49] It states a rule of law based on an interpretation of the Constitution which is
not only untenable but is also unnecessary for the decision. It disregards facts essential to a
determination of the question presented for decision. It overlooks the basis issue on which our
disposition of the case must turn. In order to reach that issue we must have a more exact appreciation
of the facts than can be gleaned from the opinion of the Court.

I.

Cramer is a naturalized citizen of the United States, born in Germany. He served in the German army in
the last war, coming to this country in 1925. In 1929 he met Thiel who had come to this country in
1927 from a place in Germany not far from petitioner's birthplace. The two became close friends; they
were intimate associates during a twelve-year period. In 1933 Cramer found work in Indiana. Thiel
joined him there. Both became members of the Friends of New Germany, predecessor of the German-
American Bund. Cramer was an officer of the Indiana local. He resigned in 1935 but Thiel remained a
member and was known as a zealous Nazi. In 1936 Cramer visited Germany. On his return he received
his final citizenship papers. He and Thiel returned to New York in 1937 and lived either together or in
close proximity for about four years. Thiel left for Germany in the spring of 1941, feeling that war
between the United States and Germany was imminent. According to Cramer, Thiel was 'up to his ears'
is Nazi ideology. Cramer corresponded with Thiel in Germany. Prior to our declaration of war, he was
sympathetic with the German cause and critical of our attitude. Thus in November, 1941, he wrote
Thiel saying he had declined a job in Detroit 'as I don't was to dirty my fingers with war material'; that
'We sit here in pitiable comfort, when we should be in the [325 U.S. 1, 50] battle-as Nietzsche says-I
want the man, I want the woman, the one fit for war, the other fit for bearing.' In the spring of 1942 he
wrote another friend in reference to the possibility of being drafted: 'Personally I should not care at all
to be misused by the American army as a world conqueror.' Cramer listened to short-wave broadcasts
of Lord Haw-Haw and other German propagandists. He knew that the theme of German propaganda
was that England and the United States were fighting a war of aggression and seeking to conquer the
world.

So much for the background. What followed is a sequel to Ex parte Quirin, 317 U.S. 1 , 63 S.Ct. 2.

Thiel entered the German army and in 1942 volunteered with seven other German soldiers who had
lived in the United States for a special mission to destroy the American aluminum industry. They were
brought here by German submarines in two groups. Kerling was the leader and Thiel a member of one
group which landed by rubber boat near Jacksonville, Florida on June 17, 1942. They buried their
explosives and proceeded to New York City, where on June 21st they registered at the Hotel
Commodore under the assumed names of Edward Kelly and William Thomas.

The next morning a strange voice called Cramer's name from the hall of the rooming house where he
lived. On his failure to reply an unsigned note was slipped under his door. It read, 'Be at the Grand
Central station tonight at 8 o'clock, the upper platform near the information booth, Franz from Chicago
has come into town and wants to see you; don't fail to be there.' Cramer said he knew no Franz from
Chicago. But nevertheless he was on hand at the appointed hour and place. Thiel shortly appeared.
They went to the Twin Oaks Inn where they talked for two hours. Cramer admitted that he knew Thiel
had come from Germany; and of course, he knew that at that time men were not freely entering this
country from Ger- [325 U.S. 1, 51] many. He asked Thiel, 'Say, how have you come over, have you
come by submarine?' Thiel looked startled, smiled, and said, 'Some other time I am going to tell you all
about this.' Thiel told him that he had taken the assumed name of William Thomas and had a forged
draft card. Thiel admonished him to remember that he, Thiel, was 'anti-Nazi'-a statement Cramer
doubted because he knew Thiel was a member of the Nazi party. thiel indicated he had come from the
coast of Florida. Cramer inquired if he had used a rubber boat. When Thiel said that the only time he
was 'scared to death was when I came over here we got bombed,' Cramer replied, 'Then you have come
over by submarine, haven't you?' Thiel told Cramer that he had 'three and a half or four thousand
dollars' with him and that 'if you have the right kind of connection you can even get dollars in
Germany.' Cramer offered to keep Thiel's money for him. Thiel agreed but nothing was done about it
that evening. Cramer admitted he had a 'hunch' that Thiel was here on a mission for the German
government. He asked Thiel 'whether he had come over here to spread rumors and incite unrest.'
Cramer after his arrest told agents of the F.B.I. that he had suspected that Thiel had received the money
from the German government, that Thiel in fact had told him that he was on a mission for Germany,
and that 'whatever his mission was, I thought that he was serious in his undertaking.' Thiel from the
beginning clothed his actions with secrecy; was unwilling to be seen at Cramer's room ('because I have
too many acquaintances there and I don't want them to see me'); and cautioned Cramer against
conversing loudly with him in the public tavern.

So they agreed to meet at the Twin Oaks Inn at 8 P.M. on the following evening, June 23, 1942. At this
meeting Kerling joined them. Cramer had met Kerling in this country and knew he had returned to
Germany. Kerling[325 U.S. 1, 52] and Thiel told Cramer that they had come over together. Cramer
had a 'hunch' that Kerling was here for the same purpose as Thiel. Kerling left Thiel and Cramer after
about an hour and a half. Kerling was followed and arrested. Cramer and Thiel stayed on at the tavern
for about another hour. After Kerling left, Thiel agreed to entrust his money to Cramer for safekeeping.
He told Cramer to take out $200 which Thiel owed him. But he asked Cramer not to put all of the
balance in the safe deposit box-that he should keep some of it out 'in the event I need it in a hurry.'
Thiel went to the washroom to remove the money belt. He handed it to Cramer on the street when they
left the tavern. From the Twin Oaks Thiel and Cramer went to Thompson's Cafeteria where they
conversed for about fifteen minutes. They agreed to meet there at 8 P.M. on June 25th. They parted.
Thiel was followed and arrested.

Cramer returned home. He put Thiel's money belt in a shoe box. He put some of the money between the
pages of a book. Later he put the balance in his bank, some in a savings account, most of it in his safe
deposit box. He and Thiel had talked of Thiel's fiance e, Norma Kopp. At the first meeting Cramer had
offered to write her on Thiel's behalf. He did so. He did not mention Thiel's name but asked her to come
to his room, saying he had 'sensational' news for her. Cramer appeared at Thompson's Cafeteria at 8 P.
M. June 25th to keep his appointment with Thiel. He waited about an hour and a half. He returned the
next night, June 26th, and definitely suspected Thiel had been arrested. Though he knew Thiel was
registered at the Hotel Commodore, he made no attempt to get in touch with him there. When he
returned to his room that night, Norma Kopp was waiting for him. She testified that he told her that
Thiel was here; that 'they came about six men with a U-boat, in a rubber boat, and landed in Florida';
that they 'brought so [325 U.S. 1, 53] much money along from Germany, from the German
government' he was keeping it in a safe deposit box; and that they 'get instructions from the sitz (
hideout) in the Bronx what to do, and where to go'. The next morning Cramer left a note for 'William
Thomas' at the Commodore saying that Norma Kopp had arrived and suggested a rendezvous. Later in
the day Cramer was arrested. He told the agents of the F.B.I. that the name of the man who had been
with him at Thompson's Cafeteria on the evening of June 23rd was 'William Thomas', that 'Thomas' had
been working in a factory on the West Coast since March, 1941, and had not been out of the United
States since then. He was asked if 'Thomas' was not Thiel. He then admitted he was, saying that Thiel
had used an assumed name, as he was having difficulties with his draft board. He also stated that the
money belt Thiel gave him contained only $200 which Thiel owed him and that the $3500 in his safe
deposit box belonged to him and were the proceeds from the sale of securities. After about an hour or
so of the falsehoods Cramer asked to speak to one of the agents alone. The request was granted. He then
recanted his previous false statements and stated that he felt sure that Thiel had come from Germany by
submarine on a mission for the German Government and that he thought that mission was 'to stir up
unrest among the people and probably spread propaganda.' He stated he had lied in order to protect
Thiel.

The Court holds that this evidence is insufficient to sustain the conviction of Cramer under the
requirements of the Constitution. We disagree.

II.

Article III, Sec. 3 of the Constitution defines treason as follows: 'Treason against the United States, shall
consist only in levying War against them, or in adhering to [325 U.S. 1, 54] their Enemies, giving
them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two
Witnesses to the same overt Act, or on Confession in open Court.'

The charge against Cramer was that of adhering. The essential elements of the crime are that Cramer
(1) with treasonable intent (2) gave aid and comfort to the enemy. 1

There was ample evidence for the jury that Cramer had a treasonable intent. The trial court charged the
jury that 'criminal intent and knowledge, being a mental state, are not susceptible of being proved by
direct evidence, and therefore you must infer the nature of the defendant's intent and knowledge from
all the circumstances.' It charged that proof of criminal intent and knowledge is sufficient if proved
beyond a reasonable doubt, and that the two witnesses are not necessary for any of the facts other than
the overt acts. On that there apparently is no disagreement. It also charged: 'Now gentlemen, motive
should not be confused with intent. If the defendant knowingly gives aid and comfort to one who he
knows or believes is an enemy, then he must be taken to intend the consequences of his own voluntary
act, and the fact that his motive might not have been to aid the enemy is no [325 U.S. 1, 55] defense.
In other words, one cannot do an act which he knows will give aid and comfort to a person he knows to
be an enemy of the United States, and then seek to disclaim criminal intent and knowledge by saying
that one's motive was not to aid the enemy. So if you believe that the defendant performed acts which
by their nature gave aid and comfort to the enemy, knowing or believing him to be an enemy, then you
must find that he had criminal intent, since he intended to do the act forbidden by the law. The fact that
you may believe that his motive in so doing was, for example, merely to help a friend, or possibly for
financial gain, would not change the fact that he had a criminal intent.' On that there apparently is no
disagreement. A man who voluntarily assists one known or believed to be an enemy agent may not
defend on the ground that he betrayed his country for only thirty pieces of silver. See Hanauer v.
Doane, 12 Wall. 342, 347; Sprott v. United States, 20 Wall. 459, 463. 'The consequences of his acts are
too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his
own voluntary act.' Hanauer v. Doane, supra (12 Wall. 347). For the same reasons a man cannot slip
through our treason law because his aid to those who would destroy his country was prompted by a
desire to 'accommodate a friend.' 2 Loyalty to country cannot be subordinated to the amenities of
personal friendship. [325 U.S. 1, 56] Cramer had a traitorous intent if he knew or believed that Thiel
and Kerling were enemies and were working here in the interests of the German Reich. The trial court
charged that mere suspicion was not enough; but that it was not necessary for Cramer to have known
all their plans. There apparently is no disagreement on that. By that test the evidence against Cramer
was overwhelming. The conclusion is irresistible that Cramer believed, if he did not actually know, that
Thiel and Kerling were here on a secret mission for the German Reich with the object of injuring the
United States and that the money which Thiel gave him for safekeeping had been supplied by Germany
to facilitate the project of the enemy. The trial court charged that if the jury found that Cramer had no
purpose or intention of assisting the German Reich in its prosecution of the war or in hampering the
United States in its prosecution of the war but acted solely for the purpose of assisting Kerling and Thiel
as individuals, Cramer should be acquitted. There was ample evidence for the jury's conclusion that the
assistance Cramer rendered was assistance to the German Reich, not merely assistance to Kerling and
Thiel as individuals.

The trial judge stated when he sentenced Cramer that it did not appear that Cramer knew that Thiel
and Kerling were in possession of explosives or other means for destroying factories in this country or
that they planned to do that. He stated that if there had been direct proof of such knowledge he would
have sentenced Cramer to death rather than to forty-five years in prison. But however relevant such
particular knowledge may have been to fixing the punishment for Cramer's acts of treason, it surely
was not essential to proof of his traitorous intent. A defendant who has aided an enemy agent in this
country may not escape conviction for treason on the ground that he was not aware of the enemy's
precise objectives. Knowing or believing that the agent was here on a mis- [325 U.S. 1, 57] sion on
behalf of a hostile government, he could not, by simple failure to ask too many questions, assume that
this mission was one of charity and benevolence toward the United States. But the present case is much
stronger. For Cramer claims he believed the enemy agent's objective was to destroy national morale by
propaganda and not to blow up war factories. Propaganda designed to cause disunity among
adversaries is one of the older weapons known to warfare, and upon occasion one of the most effective.
No one can read this record without concluding that the defendant Cramer knew this. He is an
intelligent, if misguided, man. He has a quick wit sharpened by considerable learing of its kind. He is
widely read and a student of history and philosophy, particularly Ranke and Nietzsche. He had been an
officer of a pro-German organization, and his closest associate had been a zealous Nazi. He also had
listened to German propagandists over the short wave. But, in any event, it is immaterial whether
Cramer was acquainted with the efficacy of propaganda in modern warfare. Undoubtedly he knew that
the German Government thought it efficacious. When he was shown consciously and voluntarily to
have assisted this enemy program his traitorous intent was then and there sufficiently proved.

The Court does not purport to set aside the conviction for lack of sufficient evidence of traitorous intent.
It frees Cramer from this treason charge solely on the ground that the overt acts charged are
insufficient under the constitutional requirement.
III.

The overt acts alleged were (1) that Cramer met with Thiel and Kerling on June 23rd, 1942, at the
Twin Oaks Inn and 'did confer, treat, and counsel' with them 'for the purpose of giving and with the
intent to give aid and comfort' to the enemy; (2) that Cramer 'did accompany, [325 U.S. 1, 58] confer,
treat, and counsel with' Thiel at the Twin Oaks Inn and at Thompson's Cafeteria on June 23rd, 1942,
'for the purpose of giving and with intent to give aid and comfort' to the enemy; and (3) that Cramer
gave false information of the character which has been enumerated to agents of the F.B.I. 'for the
purpose of concealing the identity and mission' of Thiel and 'for the purpose of giving and with intent to
give aid and comfort' to the enemy.

The Court concedes that an overt act need not manifest on its face a traitorous intention. By that
concession it rejects the defense based on the treason clause which Cramer has made here. The Court
says an overt act must 'show sufficient action by the accused, in its setting, to sustain a finding that the
accused actually gave aid and comfort to the enemy.' It says, however, that the 'protection of the two-
witness rule extends at least to all acts of the defendant which are used to draw incriminating
inferences that aid and comfort have been given.' It adds, 'Every act, movement, deed, and word of the
defendant charged to constitute treason must be supported by the testimony of two witnesses. The two-
witness principle is to interdict imputation of incriminating acts to the accused by circumstantial
evidence or by the testimony of a single witness. The prosecution cannot rely on evidence which does
not meet the constitutional test for overt acts to create any inference that the accused did other acts or
did something more than was shown in the overt act, in order to make a giving of aid and comfort to
the enemy.' And when it comes to the overt acts of meeting and conferring with Thiel and Kerling the
Court holds that they are inadequate since there was 'no two-witness proof of what they said nor in
what language they conversed.' That is to say, reversible error is found because the two witnesses who
testified to the fact that Cramer met twice with the saboteurs did not testify that Cramer [325 U.S. 1,
59] gave them information of 'value to their mission' such as shelter, sustenance, supplies,
encouragement or counsel.

That conclusion, we submit, leads to ludicrous results. The present case is an excellent example.

It is conceded that if the two witnesses had testified not only that they saw Cramer conferring with
Thiel and Kerling but also heard him agree to keep Thiel's money and saw him take it, the result would
be different. But the assumption is that since the two witnesses could not testify as to what happened at
the meetings, we must appraise the meetings in isolation from the other facts of the record. Therein lies
the fallacy of the argument.

In the first place, we fully agree that under the constitutional provision there can be no conviction of
treason without proof of two witnesses of an overt act of treason. We also agree that the act so proved
need not itself manifest on its face the treasonable intent. And as the Court states, such intent need not
be proved by two witnesses. It may even be established by circumstantial evidence. For it is well
established that the overt act and the intent are separate and distinct elements of the crime. 3 The 'intent
may be proved by one witness, collected from circumstances, or even by a single fact.' Case of Fries, 9
Fed.Cas. pages 826, 909, No. 5,126; Respublica v. Roberts, 1 Dall. 39; United States v. Lee, 26 Fed.Cas.
page 907, No. 15,584; Trial of David Maclane, 26 How.St.Tr. 721, 795-798. Acts innocent on their
face, when judged in the light of their purpose and of related events, may turn out to be acts of aid and
comfort committed with treasonable purpose. It is the overt act charged as such in the indictment
which must be proved by two witnesses and not the related events which make manifest its treasonable
quality and purpose. This, we think, is the correct and necessary conclusion to be drawn from the
concession that the overt act need not on its face manifest the guilty purpose. The [325 U.S. 1,
60] grossest and most dangerous act of treason may be, as in this case, and often is, innocent on its
face. But the ruling of the Court that the related acts and events which show the true character of the
overt act charged must be proved by two witnesses is without warrant under the constitutional
provisions, and is so remote from the practical realities of proving the offense, as to render the
constitutional command unworkable. The treasonable intent or purpose which it is said may be proved
by a single witness or circumstantial evidence must, in the absence of a confession of guilt in open
court, be inferred from all the facts and circumstances which surround and relate to the overt act.
Inference of the treasonable purpose from events and acts related to or surrounding the overt act
necessarily includes the inference that the accused committed the overt act with the knowledge or
understanding of its treasonable character. To say that the treasonable purpose with which the accused
committed the overt act may be inferred from related events proved by a single witness, and at the same
time to say that so far as they show the treasonable character of the overt act, they must be proved by
two witnesses, is a contradiction in terms. The practical effect of such a doctrine is to require proof by
two witnesses, not only of the overt act charged which the Constitution requires but of every other fact
and circumstance relied upon to show the treasonable character of the overt act and the treasonable
purpose with which it was committed which the Constitution plainly does not require. Here, as in
practically all cases where there is no confession in open court, the two are inseparable, save only in the
single instance where the overt act manifests its treasonable character on its face. The court thus in
substance adopts the contention of the respondent, which it has rejected in words, and for all practical
purposes requires proof by two witnesses, not only of the overt act but of all other elements of the crime
save only in the [325 U.S. 1, 61] case where the accused confesses in open court. It thus confuses proof
of the overt act with proof of the purpose or intent with which the overt act was committed and,
without historical support, expands the constitutional requirement so as to include an element of proof
not embraced by its words.

We have developed in the Appendix to this opinion the historic function of the overt act in treason
cases. It is plain from those materials that the requirement of an overt act is designed to preclude
punishment for treasonable plans or schemes or hopes which have never moved out of the realm of
thought or speech. It is made a necessary ingredient of the crime to foreclose prosecutions for
constructive treason. The treasonable project is complete as a crime only when the traitorous intent has
ripened into a physical and observable act. The act standing alone may appear to be innocent or
indifferent, such as joining a person at a table, stepping into a boat, or carrying a parcel of food. That
alone is insufficient. It must be established beyond a reasonable doubt that the act was part of the
treasonable project and done in furtherance of it. Its character and significance are to be judged by its
place in the effectuation of the project. That does not mean that where the treasonable scheme involves
several treasonable acts, and the overt act which is charged has been proved by two witnesses, that all
the other acts which tend to show the treasonable character of the overt act and the treasonable
purpose with which it was committed must be proved by two witnesses. The Constitution does not so
declare. There is no historical support for saying that the phrase 'two Witnesses to the same overt Act'
may be or can be read as meaning two witnesses to all the acts involved in the treasonable scheme of
the accused. Obviously one overt act proved by two witnesses is enough to sustain a conviction even
though the accused has committed many other acts which can be proved by only one [325 U.S. 1,
62] witness or by his own admission in open court. Hence, it is enough that the overt act which is
charged be proved by two witnesses. As the Court concedes, its treasonable character need not be
manifest upon its face. We say that its true character may be proved by any competent evidence
sufficient to sustain the verdict of a jury. Any other conclusion lands to such absurd results as to
preclude the supposition that the two witness rule was intended to have the meaning attributed to it.

When we apply that test to the facts of this case it is clear to us that the judgment of conviction against
Cramer should not be set aside. The historical materials which we have set forth in the Appendix to this
opinion establish that a meeting with the enemy may be adequate as an overt act of treason. Hale,
Kelyng and Foster establish that beyond peradventure of doubt. Such a meeting might be innocent on its
face. It might also be innocent in its setting, as Hale, Kelying and Foster point out, where, for example, it
was accidental. We would have such a case here if Cramer's first meeting with Thiel was charged as an
overt act. For, as we have seen, Cramer went to the meeting without knowledge that he would meet and
confer with Thiel. But the subsequent meetings were arranged between them. They were arranged in
furtherance of Thiel's designs. Cramer was not only on notice that Thiel was here on a mission inimical
to the interests of this nation. He had agreed at the first meeting to hide Thiel's money. He had agreed to
contact Norma Kopp. He knew that Thiel wanted his identity and presence in New York concealed. This
was the setting in which the later meetings were held. The meetings take on their true character and
significance from that setting. They constitute acts. They demonstrate that Cramer had a liking for
Thiel's design to the extent of aiding him in it. They show beyond doubt that Cramer had more than a
treasonable intent; that that intent had moved from the realm of [325 U.S. 1, 63] thought into the
realm of action. Since two witnesses proved that the meetings took place, their character and
significance might be proved by any competent evidence.

In the second place, this judgment of conviction should be sustained even though we assume, arguendo,
that Cramer's motion to dismiss at the end of the government's case should have been granted. To
concern of the Court is that acts innocent on their face may be transformed into sinister or guilty acts
by circumstantial evidence, by inference, by speculation. The rule announced by the Court is based on a
desire for trust-worthy evidence in determining the character and significance of the overt acts. But
this is not a case where an act innocent on its face is given a sinister aspect and made a part of a
treasonous design by circumstantial evidence, by inference, or by the testimony of a single witness for
the prosecution. We know from Cramer's own testimony-from his admissions at the trial-exactly what
happened.

We know the character of the meetings from Cramer's own admissions. We know from his own lips
that they were not accidental or casual conferences, or innocent, social meetings. He arranged them
with Thiel. When he did so he believed that Thiel was here on a secret mission for the German Reich
with the object of injuring this nation. He also knew that Thiel was looking for a place to hide his
money. Cramer had offered to keep it for Thiel and Thiel had accepted the offer. Cramer had also
offered to write Norma Kopp, Thiel's fiance e, without mentioning Thiel's name. Cramer also knew that
Thiel wanted his identity and his presence in New York concealed. Cramer's admissions at the trial gave
character and significance to those meetings. Those admissions plus the finding of treasonable intent
place beyond a reasonable doubt the conclusion that those meetings were steps in and part and parcel
of the treasonable project.

Nor need we guess or speculate for knowledge of what happened at the meetings. We need not rely on
circum-[325 U.S. 1, 64] stantial evidence, draw inferences from other facts, or resort to secondary
sources. Again we know from Cramer's testimony at the trial-from his own admissions-precisely what
transpired.

Cramer told the whole story in open court. He admitted he agreed to act and did act as custodian of the
saboteur Thiel's money. He agreed to hold it available for Thiel's use whenever Thiel might need it. It is
difficult to imagine what greater aid one could give a saboteur unless he participated in the sabotage
himself. Funds were as essential to Thiel's plans as the explosives he buried in the sands of Florida.
Without funds the mission of all the saboteurs would have soon ended or been seriously crippled.
Cramer did not stop here. Preservation of secrecy was essential to this invasion of the enemy. It was
vital if the project was to be successful. In this respect Cramer also assisted Thiel. He cooperated with
Thiel in the concealment of Thiel's identity and presence in New York City. He did his best to throw
federal officers off the trail and to mislead them. He made false statements to them saying that Thiel's
true name was 'Thomas' and that Thiel had not been not of the country since the war began.

If Cramer had not testified, we would then be confronted with the questions discussed in the opinion of
the Court. But he took the stand and told the whole story. It is true that at the end of the government's
case Cramer moved to dismiss on the ground that the crime charged had not been made out. That
motion was denied and an exception taken. If Cramer had rested there, the case submitted to the jury
and a judgment of conviction rendered, we would have before us the problem presented in the opinion
of the Court. But Cramer did not rest on that motion. He took the stand and told the whole story. Any
defect in the proof was cured by that procedure. As stated in Bogk v. Gassert, 149 U.S. 17, 23 , 13 S.Ct.
738, 739, 'A defend- [325 U.S. 1, 65] ant has an undoubted right to stand upon his motion for a
nonsuit, and have his writ of error, if it be refused; but he has no right to insist upon his exception after
having subsequently put in his testimony, and made his case upon the merits, since the court and jury
have the right to consider the whole case as made by the testimony. It not infrequently happens that the
defendant himself, by his own evidence, supplies the missing link'. And see Sigafus v. Porter, 179 U.S.
116, 121 , 21 S.Ct. 34, 36; McCabe & Steen Const. Co. v. Wilson, 209 U.S. 275, 276 , 28 S.Ct. 558,
559; Bates v. Miller, 2 Cir., 133 F.2d 645, 647, 648; 9 Wigmore on Evidence (3d ed. 1940) 2496. And
the rule obtains in criminal as well as in civil cases. Sheridan v. United States, 9 Cir., 112 F.2d 503,
504, reversed on other grounds 312 U.S. 654 , 61 S.Ct. 619; Edwards v. United States, 8 Cir., 7 F.2d
357, 359; Baldwin v. United States, 9 Cir., 72 F.2d 810, 812.

Why then must we disregard Cramer's admissions at the trial? Why must we assume, as does this
Court, that those admissions are out of the case and that our decision must depend solely on the
evidence presented by the government?

The Constitution says that a 'confession in open Court' is sufficient to sustain a conviction of treason. It
was held in United States v. Magtibay, 2 Philippine 703, that a confession in open court to the overt acts
charged in the indictment was not an adequate substitute for the testimony of two witnesses where the
accused denied treasonable purpose. We need not go so far as to say that if the whole crime may be
proved by an admission by the accused in open court, one of the ingredients of the offense may be
established in like manner. See Respublica v. Roberts, supra. We do not say that if the government
completely fails to prove an overt act or proves it by one witness only, the defect can be cured by the
testimony of other witnesses or by the admissions of the accused. We do say that a meeting with the
enemy is an act and [325 U.S. 1, 66] may in its setting be an overt act of treason. We agree that overt
acts innocent on their face should not be lightly transformed into incriminating acts. But so long as
overt acts of treason need not manifest treason on their face, as the Court concedes, the sufficiency of
the evidence to establish the treasonable character of the act, like the evidence of trasonable intent,
depends on the quality of that evidence whatever the number of witnesses who supplied it. There can
be no doubt in this case on that score. Certainly a person who takes the stand in defense of a treason
charge against him will not be presumed to commit perjury when he makes admissions against self-
interest. Admissions against self- interest have indeed always been considered as the highest character
of evidence. When two witnesses testify to the overt acts, why then are not admissions of the accused in
open court adequate to establish their true character? Could the testimony of any number of witnesses
more certainly or conclusively establish the significance of what was done? Take the case where two
witnesses testify that the accused delivered a package to the enemy, the accused admitting in open court
that the package contained guns or ammunition. Or two witnesses testify that the accused sent the
enemy a message, innocuous on its face, the accused admitting in open court that the message was a
code containing military information. Must a conviction be set aside because the two witnesses did not
testify to what the accused admitted in open court? We say no. In such circumstances we have no
examples of constructive treason. The intent is not taken for the deed. Proof of the overt act plus proof
of a treasonable intent make clear that the treasonable design has moved out of the realm of thought
into the filed of action. And any possibility that an act innocent on its face has been transformed into a
sinister or guilty act is foreclosed. For the significance and character of the act are supplied by the
admissions from the lips of [325 U.S. 1, 67] the accused in open court. The contrary result could be
reached only if it were necessary that the overt act manifest treason on its face. That theory is rejected
by the Court. But once rejected it is fatal to the defense.

Cramer's counsel could not defend on the grounds advanced by the Court for the simple reason that the
government having proved by two witnesses that Cramer met and conferred with the saboteurs, any
possible insufficiency in the evidence which it adduced to show the character and significance of the
meetings was cured by Cramer's own testimony. Cramer can defend only on the ground that the overt
act must manifest treason, which the Court rejects, or on the ground that he had no treasonable intent,
which the jury found against him on an abundance of evidence. Those are the only alternatives because
concededly conferences with saboteurs here on a mission for the enemy may be wholly adequate as
overt acts under the treason clause. They were proved by two witnesses as required by the Constitution.
Any possible doubt as to their character and significance as parts of a treasonable project were removed
by the defendant's own admissions in open court. To say that we are precluded from considering those
admissions in weighing the sufficiency of the evidence of the true character and significance of the
overt acts is neither good sense nor good law. Such a result makes the way easy for the traitor, does
violence to the Constitution and makes justice truly blind.

Appendix

The most relevant source of materials for interpretation of the treason clause of the Constitution is the
statute of 25 Edw. III, Stat. 5, ch. 2 (1351) and the construction which was given it. It was with that
body of law and the English and colonial experience under it that the Framers were acquainted. That
statute specified seven offenses as [325 U.S. 1, 68] constituting treason. As respects the three offenses
relevant to our present discussion, it provided as follows: if a man 'doth compass or imagine the death'
of the king, or 'if a man do levy war' against the king in his realm, or if he 'be adherent to the king's
enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be
probably attainted of open deed', he shall be guilty of treason.

Coke makes clear that the requirement of an overt act under the statute applies to all of the offenses
included in the category of treason. See Coke, Institutes of the Laws of England, Third Part (5th ed.
London, 1671), p. 5. There are indications by Coke that the overt act was a separate element of the
offense and that its function was to show that the treasonable design had moved from thought to action.
Id., pp. 5, 12, 14, 38. Hale is somewhat more explicit. In discussing the offense of compassing the king's
death he indicates that the overt act may be 'indifferent' in character. He says, 'That words may expound
an overt-act to make good an indictment of treason of compassing the king's death, which overt-act
possibly of itself may be indifferent and unapplicable to such an intent.' 1 Hale, History of the Pleas of
the Crown (Emlyn ed., London, 1736), p. 115. And he noted that 'If there be an assembling together to
consider how they may kill the king, this assembling is an overt-act to make good an indictment of
compassing the king's death.' Id., p. 119. Kelying states the same view. He cites Sir Everard Digby's Case,
1 St.Tr. 234, for the proposition that the meeting of persons and their consulting to destroy the king
was itself an overt act. 'It was resolved that where a Person knowing of the Design does meet with them,
and hear them discourse of their traitorous Designs, and say or act nothing; This is High-Treason in
that Party, for it is more than a bare Concealment, which is Misprision, because it sheweth his liking
and approving of their De- [325 U.S. 1, 69] sign.' He says that if a person not knowing their intent met
with them, heard their plans, but said nothing and never met again, that would be only misprision of
treason. 'But if he after meet with them again, and hear their Consultations, and then conceal it, this is
High-Treason. For it sheweth a liking, and an approving of their Design.' Kelyng, A Report of Divers
Cases in Pleas of the Crown (3d ed., London, 1873), p. *17. And see p. *21.

Foster is even more explicit. Like Coke he asserts that an overt act is required for each branch of treason
covered by the Statute of Edward III. Foster, A Report of Some Proceedings on the Commission for the
Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases (2d ed., London
1791), pp. 207, 237. He makes clear that an overt act is required not to corroborate the proof of a
traitorous intent but to show that the treasonable project has left the realm of thought and moved into
the realm of action. As respects the offense of compassing the death of the king, he says that the
indictment 'must charge, that the defendant did traitorously compass and imagine &c, and then go on
and charge the several overt-acts as the means employed by the defendant for executing his traitorous
purposes. For the compassing is considered as the treason, the overt-acts as the means made use of to
effectuate the intentions and imaginations of the heart.' Id., p. 194. He refers to Crohagan's Case (Cro.
Car. 332) where the defendant said 'I will kill the King of England, if I can come at him' and the
indictment added that he came to England for that purpose. 'The traitorous intention, proved by his
words, converted an action, innocent in itself, into an overt-act of treason.' Id., p. 202. And he also
points out that 'Overt-acts undoubtedly do discover the man's intentions; but, I conceive, they are not to
be considered merely as evidence, but as the means made use of to effectuate the purposes of the heart.'
Id., p. 203. And he adds, 'Upon this [325 U.S. 1, 70] principle words of advice or encouragement, and,
above all, consultations for destroying the King, very properly come under the notion of means made
use of for the purpose. But loose words not relative to facts are, at the worst, no more than bare
indications of the malignity of the heart.' Id., p. 204. He follows Kelyng in saying that attendance at a
meeting with previous notice of the design to plot the death of the king or a return to a meeting after
knowledge is gained of its treasonable purpose is treason, though bare concealment would not be if the
defendant met the conspirators 'accidentally or upon some indifferent occasion'. Id., p. 195.

It is true that these observations related to the offense of compassing or imagining the death of the king.
But Foster indicates that the same test applies to make out the offense of adherence to the king's
enemies. He says, 'The offense of inciting foreigners to invade the kingdom is a treason of signal
enormity. In the lowest estimation of things and in all possible events, it is an attempt, on the part of the
offender, to render his country the seat of blood and desolation.' Id., pp. 196-197. This was said in
connection with his discussion of Lord Preston's case, 12 How.St.Tr. 645, a landmark in the law of
treason. Lord Preston was indicted both for compassing the death of the king and for adherence to his
enemies. England was at war with France. The indictment alleged as an overt act of treason that on
December 30, 1690, Lord Preston and others hired a small boat in the County of Middlesex to take
them to another vessel which would carry them to France. The indictment alleged that the defendants
were en route to France to communicate military information to the enemy. After the vessel set sail for
France and when the vessel was in the County of Kent, the defendants were arrested. Papers containing
information of value to the enemy were found on the person of Lord Preston's servant. Lord Preston
contended that since the indictment laid the [325 U.S. 1, 71] treason in Middlesex there was no
showing that a legally sufficient overt act of treason had been committed in that county. The court held,
however, that the act of boarding the boat in Middlesex was a sufficient overt act of treason. Lord Chief
Justice Holt ruled, 'Now the question is, whether your lordship had a design to go to France with these
papers? If you had, and if your lordship did go on ship-board in order to it, your taking boat in
Middlesex in order to go on ship-board, is a fact done in the county of Middlesex.' 12 How.St.Tr., p.
728.

Foster in his analysis of that case makes clear that taking the boat was an overt act sufficient not only to
the crime of compassing the death of the king but also adherence to the enemies of the king. Foster, op.
cit ., pp. 197-198. Yet on its face and standing alone the overt act of taking the boat was completely
innocent and harmless. Only when it was related to other activities and events did it acquire a
treasonable significance. Foster gives other indications that in case of adherence to the enemy the
function of the overt act is no different than when the offense of compassing is charged. The crime of
adherence is made out where the defendant attempts to send money, provisions, or information to the
enemy 'though the money or intelligence should happen to be intercepted; for the party in sending did
all he could; the treason was complete on his part, though it had not the effect he intended.' Id., p. 217.

Blackstone emphasizes the desirability of a restrictive interpretation of the offense of treason,

condemning 'constructive' treason and 'newfangled treasons' which imperil the liberty of the people. 4
Blackstone, Commentaries (6th ed. Dublin 1775), pp. 75, 83, 85, 86. Blackstone recognizes the
distinction between evidence of intent and the overt act: 'But, as this compassing or imagination is an
act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by [325
U.S. 1, 72] some open, or overt act. And yet the tyrant Dionysius is recorded to have executed a
subject, barely for dreaming that he had killed him; which was held for a sufficient proof, that he had
thought thereof in his waking hours. But such is not the temper of the English law; and therefore, in
this, and the three next species of treason, it is necessary that there appear an open or overt act of a
more full and explicit nature, to convict the traitor upon.' Id., p. 79. When it comes to the offense of
adherence to the enemy he gives examples of adequate overt acts, some of which may be innocent
standing by themselves. 'This must likewise be provided by some overt act, as by giving them
intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a
fortress, or the like.' Id., pp. 82-83. His analysis supports the views of Foster that the function of the
overt act is to show that the traitorous project has moved out of the realm of thought into the realm of
action.

The English cases prior to 1790 support this thesis. We have mentioned Lord Preston's case. In the case
of Captain Vaughn, 13 How.St.Tr. 485, the principal charge against the defendant was adhering to the
enemy, though levying war was also alleged. The substance of the overt act of adherence was that when
France and England were at war the defendant cruised in a small ship of war, in English waters, in the
service of France with intent to take the king's ships. It was objected that the overt act alleged was
insufficient 'for it is said only he went a-cruising; whereas they ought to have alleged that he did
commit some acts of hostility, and attempted to take some of the king's ships; for cruising alone cannot
be an overt-act; for he might be cruising to secure the French merchantships from being taken, or for
many other purposes, which will not be an overt-act of treason.' p.531. But Lord Chief Justice Holt
ruled: 'I beg your pardon. Suppose the French king, with forces, should [325 U.S. 1, 73] come to
Dunkirk with a design to invade England; if any one should send him victuals, or give him intelligence,
or by any other way contribute to their assistance, it would be high-treason in adhering to the king's
enemies.' p. 531. And Lord Chief Justice Treby added: 'The indictment is laid for adhering to, and
comforting and aiding the king's enemies. You would take that to be capable to be construed adhering
to the king's enemies in other respects; but I take it to be a reasonable construction of the indictment, to
be adhering to the king's enemies in their enmity. What is the duty of every subject? It is to fight with,
subdue, and weaken the king's enemies: and contrary to this, if he confederate with, and strengthen the
king's enemies, he expressly contradicts this duty of his allegiance, and is guilty of this treason of
adhering to them. But then you say here is no aiding unless there was something done, some act of
hostility. Now here is going aboard with an intention to do such acts; and is not that comforting and
aiding? Certainly it is. Is not the French king comforted and aided, when he has got so many English
subjects to go a cruising upon our ships?' pp. 532, 533. And he went on to say that acts which 'give the
enemy heart and courage to go on with the war' are acts of adherence even though the whole project
was 'an unprosperous attempt.' p. 533. He emphasized that the lack of success was immaterial, for 'if
they have success enough, it will be too late to question them.' p. 533. This is plain recognition not only
that the aid and comfort may be given though the project is thwarted1 but also that aid and comfort is
given when the enemy is encouraged and his morale bolstered as well as when materials are
furnished. [325 U.S. 1, 74] The case of Francis De la Motte, 21 How.St.Tr. 687, is also somewhat
illuminating. The indictment charged compassing and adhering. The overt acts included writing and
causing to be written documents conveying intelligence to the enemy, procuring a messenger to cary
the documents, and hiring a person to gather and to send the intelligence. Mr. Justice Buller in his
charge to the jury said: 'The sending intelligence, or collecting intelligence, for the purpose of sending it
to an enemy, to enable them to annoy us or to defend themselves, though it be never delivered to the
enemy; or the hiring a person for that purpose, is an overt act of both the species of treason which I am
stating to you from this indictment.' p. 808.

These materials indicate that the function of the overt act was to make certain that before a conviction
for the high crime of treason may be had more than a treasonable design must be established; it must be
shown that action pursuant to that design has been taken. The treason of adherence was defined
essentially in terms of conduct for it involved giving aid and comfort. Yet the attempt alone was
sufficient; the aid and comfort need not have been received by the enemy. Conduct amounting to aid
and comfort might be innocent by itself-such as collecting information or stepping into a boat. It was
sufficient if in its setting it reflected a treasonable project. It need not entail material aid; comfort or
encouragement was sufficient. The only requirement was that it definitely translate treasonable thought
into action which plainly tended to give aid and comfort to the enemy.

These materials likewise support the contention of the government that the overt act need not manifest
treason on its face.
The history of treason in this country down to the Constitution has been recently developed in Hurst,
Treason in the United States, (1944) 58 Harv.L.Rev. 226. We [325 U.S. 1, 75] do not stop to explore
that field. But Professor Hurst's researches make plain that prior to the revolution the influence of 25
Edw. III was strong in the colonies and that, if anything, the scope of the offense was somewhat
broadened. The Revolution changed matters. The Continental Congress recommended more restrictive
legislation to the colonies which limited treason to levying war and adhering to the enemy, giving him
aid and comfort. Id., p. 247. No form of treason by compassing was retained. Id., p. 252. Distrust of
constructive treason was beginning to be voiced ( id., pp. 253, 254) though in some colonies treason
was so broadly defined as to include mere utterances of opinions. Id., pp. 266 et seq.

The proceedings of the Constitutional Convention of 1787 have been related in the opinion of the
Court. And see Hurst, Treason in the United States, 58 Harv.L.Rev. 395. As the Court points out the
Framers were anxious to guard against convictions of the innocent by perjury and to remove treason
from the realm of domestic, political disputes. Franklin expressed concern on the first in his statement
that 'prosecutions for treason were generally virulent; and perjury too easily made use of against
innocence.' 2 Farrand, Records of the Federal Convention, p. 348. Madison and Jefferson2 both
expressed distrust of treason for its long history of abuse in the political field. Madison said in language
somewhat reminiscent of Blackstone: 'As treason may be committed [325 U.S. 1, 76] against the United
States, the authority of the United States ought to be enabled to punish it. But as new-fangled and
artifical treasons have been the great engines by which violent factions, the natural offspring of free
government, have usually wreaked their alternate malignity on each other, the convention have, with
great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the
crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it,
from extending the consequences of guilt beyond the person of its author.' The Federalist, No. XLIII.

The requirement of two wotnesses was not novel. England had long had that rule. 9 Holdsworth, A
History of English Law (2d ed. 1938) p. 207. The novelty was in the requirement that there be two
witnesses to the 'same' overt act. Moreover, there was no novely in the offenses which were included in
the definition of treason. Adhering to the enemy, giving him aid and comfort, like levying war, had long
been embraced in the English crime of treason as we have seen. But there was novelty in the narrow
definition of treason which was adopted-a restrictive definition born of the fear of constructive treason
and distrust of treason as a political instrument.

There is, however, no evidence whatever that the offense of adhering to the enemy giving him aid and
comfort was designed to encompass a narrower field than that indicated by its accepted and settled
meaning. Nor is there the slightest indication that the kind or character of overt acts required were any
different than those which had long been recognized or accepted as adequate. The overt act was of
course 'intended as a distinct element of proof of the offense in addition to intent.' Hurst, op. cit., pp.
415-416. But any suggested difference from the body of law which preceded vanishes when two
witnesses to the same overt act are produced. As respects the point vital [325 U.S. 1, 77] for our
decision it is therefore quite inaccurate for the Court to conclude that our treason clause 'taught a
concept that differed from all historical models.' That would be true only if there was a purpose to
depart from the concept of adhering to the enemy or the concept of overt acts which had become
ingrained in the antecedent English law. We find no such purpose.

Footnotes
[ Footnote 1 ] 18 U.S.C. 1, 18 U.S.C.A. 1, derived from Act of April 30, 1790, c. 9, 1, 1 Stat. 112.

[ Footnote 2 ] Article III, Section 3.

[ Footnote 3 ] D.C.S.D.N.Y.1919, 259, F, 685, 690.

[ Footnote 4 ] This view was recently followed by Judge Clancy in District Court, in dismissing an
indictment for treason. United States v. Leiner, S.D.N.Y. 1943 (unreported).

[ Footnote 5 ] United States v. Cramer, 2 Cir., 137 F.2d 888, 896.

[ Footnote 6 ] D.C.S.D.N.Y.1919, 259 F. 673, 677.

[ Footnote 7 ] 'An overt act, in criminal law, is an outward act done in pursuance and in manifestation
of an intent or design; an overt act in this case means some physical action done for the purpose of
carrying out or affecting (sic) the treason.' United States v. Haupt, N.D.Ill.1942, 47 F. Supp. 836, 839,
reversed on other grounds, 7 Cir., 1943, 136 F.2d 661.

'The overt act is the doing of some actual act, looking towards the accomplishment of the crime.' United
States v. Stephan, D.C.E.D.Mich.1943, 50 F.Supp. 738, 742, 743, note.
[ Footnote 8 ] 320 U.S. 730 , 64 S.Ct. 192.

[ Footnote 9 ] 64 S.Ct. 1149. Counsel for petitioner, although assigned by the trial court, has responded
with extended researches. The Solicitor General engaged scholars not otherwise involved in conduct of
the case to collect and impartially to summarize statutes, decisions, and taxts from Roman, Continental,
and Canon law as well as from English, Colonial and American law sources. The part of the study
dealing with American materials has been made available through publication in 58 Harv.L.Rev. 226 et
seq. Counsel have lightened our burden of examination of the considerable accumulation of historical
materials.

[ Footnote 10 ] The Committee included John Adams, Thomas Jefferson, John Rutledge, James Wilson,
and Robert Livingston. See C. F. Adams, Life of John Adams in 1 Works of John Adams (1856) 224, 225.

[ Footnote 11 ] Resolved, That all persons abiding within any of the United Colonies, and deriving
protection from the laws of the same, owe allegiance to the said laws, and are members of such colony;
and that all persons passing through, visiting, or make (sic) a temporary stay in any of the said colonies,
being entitled to the protection of the laws during the time of such passage, visitation or temporary stay,
owe, during the same time, allegiance thereto:

'That all persons, members of, or owing allegiance to any of the United Colonies, as before described,
who shall levy war against any of the said colonies within the same, or be adherent to the king of Great
Britain, or others the enemies of the said colonies, or any of them, within the same, giving to him or
them aid and comfort, are guilty of treason against such colony:
'That it be recommended to the legislatures of the several United Colonies, to pass laws for punishing, in
such manner as to them shall seem fit, such persons before described, as shall be proveably attainted of
open deed, by people of their condition, of any of the treasone before described.' 5 Journals of the
Continental Congress (1906) 475.
[ Footnote 12 ] Nine states substantially adopted the recommendation of the Congress: Delaware,
Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island,
Virginia. (The Virginia law, though it did not copy in full the recommendation of Congress, was drawn
by Jefferson, among others, and hence probably can be regarded as originating in the same source as
the others.) Three states had basic treason statutes not patterned on the Congressional model, one
antedating the latter: Connecticut, Maryland, South Carolina. Georgia is not found to have enacted any
general treason statute, although it passed a number of separate acts of attainder.
The Maryland act declared that 'the several crimes aforesaid shall receive the same constructions that
have been given to such of the said crimes as are enumerated in the statute of Edward the third,
commonly called the statute of treasons.' None of the statutes contained negative language, limiting the
definition of treason expressly to that set forth in the statute. In general, too, they added to the
definition of the model recommended by Congress other specific kinds of treason. Thus a number
defined treason as including conspiracy to levy war. Conspiracy to adhere to the enemy and give aid
and comfort was also included in several, or incorporated by separate acts. Much explicit attention was
given to the problem of contact with the enemy. Conveying of intelligence or carrying on of
correspondence with the enemy were expressly mentioned. One typical provision declared guilty of
treason those persons who were 'adherent to ... the enemies of this State within the same, or to the
Enemies of the United States ... giving to ... them Aid or Comfort, or by giving to ... them Advice or
Intelligence either by Letters, Messages, Words, Signs or Tokens, or in any way whatsoever, or by
procuring for, or furnishing to ... them any Kind of Provisions or Warlike Stores ....' Other provisions
referred to 'joining their Armies,' 'inlisting or persuading others to inlist for that Purpose,' 'furnishing
Enemies with Arms or Ammunition, Provision or any other Articles for such their Aid or Comfort,'
'wilfully betraying, or voluntarily yielding or delivering any vessel belonging to this State or the United
States to the Enemies of the United States of America'; and to persons who 'have joined, or shall
hereafter join the Enemies of this State, or put themselves under the Power and Protection of the said
Enemies, who shall come into this State and rob or plunder any Person or Persons of their Goods and
Effects, or shall burn any Dwelling House or other Building, or be aiding or assisting therein,' or who
should maliciously and with an intent to obstruct the service dissuade others from enlisting, or
maliciously spread false rumors concerning the forces of either side such as to alienate the affections of
the people from the Government 'or to terrify or discourage the good Subjects of this State, or to dispose
them to favor the Pretensions of the Enemy,' or who 'shall take a Commission or Commissions from the
King of Great Britain, or any under his Authority, or other the Enemies of this State, or the United States
of America.'

A number of the statutes required 'the testimony of two lawful and credible witnesses.' But the
requirement was not linked to the proof of overt acts, and there was no suggestion of the type of
provision later embodied in the Constitution. Supplementary acts creating special treasonable offenses
tended to omit any requirement as to quantum of proof.

See Hurst, op cit. supra, 58 Harv.L.Rev. at 248 et seq.

[ Footnote 13 ] For example, the New York Act of March 30, 1781, after reciting that it was necessary
to make further provision respecting treason in order to prevent adherence to the king, made it a felony
to declare or maintain 'that the King of Great Britain hath, or of Right ought to have, any Authority, or
Dominion, in or over this State, or the Inhabitants thereof,' or to persuade or attempt to persuade any
inhabitant to renounce allegiance to the State or acknowledge allegiance to the king, or to affirm one's
own allegiance to the king. A person convicted was to 'suffer the Pains and Penalties prescribed by Law
in Cases of Felony without Benefit of Clergy,' except that the court might, instead of prescribing death,
sentence to three years' service on an American warship. Laws of the State of New-York (Pough-
keepsie, 1782) 4th Sess., Ch. XLVIII. Virginia imposed a fine not exceeding 20,000, and imprisonment
up to five years 'if any person residing or being within this commonwealth shall ... by any word, open
deed, or act, advisedly and willingly maintain and defend the authority, jurisdiction, or power, of the
king or parliament of Great Britain, heretofore claimed and exercised within this colony, or shall
attribute any such authority, jurisdiction, or power, to the king or parliament of Great Britain. ....' Laws,
October, 1776, Ch. V, 9 Hening, Statutes at Large (1823) 170. See also Hurst, op. cit. supra, 58 Harv.L.
Rev. at 265-267.

[ Footnote 14 ] A similar situation prevailed during the Civil War, when treason prosecutions were
instituted against citizens of some southern states for treason to the state, consisting of adherence to the
United States. See Robinson, Justice in Grey, pp. 176, 199, 201, 202, 270, 289, 380, 385, 408.
[ Footnote 15 ] See Hurst, Treason in the United States (1944) 58 Harv.L.Rev. 226, 268-71. Although
these acts, dealing with withdrawal to enemy territory, imposed in general only forfeiture and
banishment, some did reinforce these penalties with the threat of death if the person should later be
found within the state. Id., 272.

[ Footnote 16 ] The only pre-Revolutionary treason trial of which there is an extensive record is King v.
Bayard (1702), a New York prosecution under an Act of May 6, 1691, which made it treason 'by force
of arms or otherwise to disturb the peace good and quiet of this their Majestyes Government as it is now
Established.' (The act was thought by the home authorities to be objectionably broad and vague and was
later repealed.) See The Trial of Nicholas Bayard, 14 Howell's State Trials 471; 10 Lawson, American
State 518; Hurst, op. cit. supra, 58 Harv.L.Rev. at 233. For other material on colonial treason
prosecutions, see Hurst, op. cit. supra, 58 Harv.L.Rev. at 234, n. 15.

[ Footnote 17 ] In the early part of the colonial period, charters and grants gave royal governors
authority to use martial law for suppression of 'rebellion,' 'sedition,' and 'mutiny,' and references to
treason were not in the traditional language. A provision of the General Laws of New Plimouth Colony,
1671, is representative:

'3. Treason against the Person of our Soveraign Lord the King, the State and Common-wealth of
England, shall be punished by death.
'4. That whosoever shall Conspire and Attempt any Invasion, Insurrection, or Publick Rebellion against
this Jurisdiction, or the Surprizal of any Town, Plantation, Fortification or Ammunition, therein
provided for the safety thereof, or shall Treacherously and Perfidiously Attempt and Endeavor the
Alteration and Subversion of the Fundamental Frame and Constitutions of this Government; every such
Person shall be put to Death.'
But the bulk of colonial legislation prior to the Revolution drew extensively on English law, especially
the statute 25 Edward III. Some of the acts substantially adopted the language of the latter statute, with
additions, and some simply declared that the offense of treason should follow the English law. With the
exception of Georgia and New Jersey, all the colonies eventually adopted one or the other type statute.

In addition, the English law of treason itself applied, to an undefined extent, and several colonial acts
were disallowed on the theory that they covered ground already occupied by the mother country's
legislation. The colonies which enacted their own statutes patterned after 25 Edward III did not narrow
its terms. Several expressly included the treason of compassing the death of the king, and a couple even
made an analogous offense of compassing the death of the proprietor. The offense of levying war
against the king was given a broad definition; some of the colonies expressly included various forms of
'constructive' levying of war which had been put into the English statute by judicial construction, in
general extending the crime to domestic disturbances; and some of the statutes made conspiracy to levy
war sufficient to constitute the crime of levying war. Some specific attention was given in separate
legislation at various times to contact with the enemy, legislation comparable to that subsequently
enacted during the Revolutionary period.

Most of the colonial treason acts contained two-witness requirements, without the additional
qualification later adopted in the Constitution, that they must be witnesses to the same overt act,
although it was required that they be witnesses to the same general kind of treason.

See generally Hurst, op. cit. supra, 58 Harv.L.Rev. at 226-245.

[ Footnote 18 ] 'The men who framed the instruments remembered the crimes that had been
perpetrated under the pretense of justice; for the most part they had been traitors themselves, and
having risked their necks under the law they feared despotism and arbitrary power more than they
feared treason.' 3 Adams, History of the United States, 468.

'Every member of that Convention-every officer and soldier of the Revolution from Washington down
to private, every man or woman who had given succor or supplies to a member of the patriot army,
everybody who had advocated American independence ... could have been prosecuted and convicted as
'traitors' under the British law of constructive treason.' 3 Beveridge, Life of John Marshall, 402, 403.
[ Footnote 19 ] This was doubtless the meaning of Franklin's quip at the signing of the Declaration of
Independence that if the signers did not hang together they should hang separately. It was also the
meaning of the cries of 'Treason' which interrupted Patrick Henry in the speech in the Virginia House of
Burgesses evoking the famous reply 'If this be treason, make the most of it.'

[ Footnote 20 ] 1 Journals of the Continental Congress, 65. See also 1 Burnett, ed ., Letters of Members
of the Continental Congress (1921) 43, 44, n. 36.

[ Footnote 21 ] The men who were responsible for framing our Constitution were influenced by
eighteenth century liberal thought from both French and English sources. French influences, more
philosophical than legal in character, were particularly strong with Franklin, who took a significant
part in framing the treason clause. Franklin had been a member of the French Academy of Sciences
since 1772 and had many friends among French intellectuals. He spent much time in England and in
France, to which he was sent by the Continental Congress as Commissioner in 1776. He remained until
1783, when he signed the Treaty of Peace with England, and thereafter until 1785 as Minister to
France. Becker, Franklin, 6 Dictionary of American Biography 585; 9 Encyclopedia Britannica (14th
ed.) 693. Jefferson, a strong influence with the men of that period, was sent to France by the
Continental Congress to assist Franklin, remaining there from 1784 to 1789, succeeding Franklin in
1785 as Minister. Jefferson was so closely in touch with French revolutionary thought that in July 1789
he was invited to assist in the deliberations of the Committee of the French National Assembly to draft a
Constitution, but declined out of respect for his position. See Malone, Jefferson, 10 Dictionary of
American Biography 17; 12 Encyclopedia Britannica (14th ed.) 988. See also, generally, Chinard,
Thomas Jefferson, the Apostle of Americanism. Best known in America of the French writings was
Montesquien's L'Esprit des Lois, which appeared in French in 1748. (An English edition was published
in London in 1750.) Book 12 thereof was devoted to his philosophical reactions to the abuses of
treason. It is hardly a coincidence that the treason clause of the Constitution embodies every one of the
precepts suggested by Montesquieu in discussing the excesses of ancient and European history.

Some of his precepts were: 'If the crime of high treason be indeterminate, this alone is sufficient to make
the government degenerate into arbitrary power.' Book 12, Ch. 7, Of the Crime of High Treason. 'The
laws do not take upon them to punish any other than overt acts.' Book 12, Ch. 11, Of Thoughts.
'Nothing renders the crime of high treason more arbitrary than declaring people guilty of it for
indiscreet speeches. ... Words do not constitute an overt act; they remain only in idea. ... Overt acts do
not happen every day; they are exposed to the eye of the public; and a false charge with regard to
matters of fact may be easily detected. Words carried into action assume the nature of that action. Thus
a man who goes into a public market-place to incite the subject to revolt, incurs the guilt of high
treason, because the words are joined to the action, and partake of its nature. It is not the words that are
punished but an action in which the words are employed.' Book 12, Ch. 12, Of Indiscreet Speeches.
'Those laws which condemn a man to death on the deposition of a single witness, are fatal to liberty.'
Book 12, Ch. 3, Of The Liberty of the Subject.

Both French and English influences on American thought as shown by Jefferson's writings are tracted
by Perry, Puritanism and Democracy (1945) 126, 130, 134, 158, 182, 184, 185.
[ Footnote 22 ] 'Declaration what offenses shall be adjudged treason. Item, whereas divers opinions
have been before this time in what case treason shall be said, and in what not; the King, at the request
of the lords and of the commons, hath made a declaration in the manner as hereafter followeth, that is
to say, when a man doth compass or imagine the death of our lord the King, or of our lady his queen or
of their eldest son and heir; or if a man do violate the King's companion, or the King's eldest daughter
unmarried, or the wife the King's eldest son and heir; or if a man do levy war against our lord the King
in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the
realm, or elsewhere, and thereof be probably attainted of open deed by the people of their condition:
And if a man counterfeit the King's great or privy seal, or his money; and if a man bring false money
into this realm, counterfeit to the money of England, as the money called lushburgh, or other, like to the
said money of England, knowing the money to be false, to merchandise or make payment in deceit of
our said lord the King and of his people; and if a man slea the chancellor, treasurer, or the King's
justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices
assigned to hear and determine, being in their places, doing their offices: and it is to be understood, that
in the cases above rehearsed, that ought to be judged treason which extends to our lord the King, and
his royal majesty: And of such treason the forfeiture of the escheats pertaineth to our sovereign lord, as
well as of the lands and tenements holden of other, as of himself: And moreover there is another
manner of treason, that is to say, when a servant slayeth his master, or a wife her husband, or when a
man secular or religious slayeth his prelate, to whom he oweth faith and obedience; and of such treason
the escheats ought to pertain to every lord of his own fee. And because that many other like cases of
treason may happen in time to come, which a man cannot think or declare at this present time; it is
accorded, that if any other case, supposed treason, which is not above specified, doth happen before
any justices, the justices shall tarry without any going to judgment of the treason, till the cause be
shewed and declared before the King and his Parliament, whether it ought to be judged treason or other
felony. And if percase any man of this realm ride armed covertly or secretly with men of arms against
any other, to slay him, or rob him, or take him, or retain him till he hath made fine or ransom for to
have his deliverance, it is not the mind of the King nor his counsel, that in such case it shall be judged
treason but shall be judged felony or trespass, according to the laws of the land of old time used, and
according as the case requireth.' 4 Halsbury's Statutes of England 273.

[ Footnote 23 ] Stephen said of it: 'In quiet times it is seldom put in force, and if by any accident it is
necessary to apply it, the necessity for doing so is obvious. For revolutionary periods it is obviously and
always insufficient, and at such times it is usually supplemented by enactments which ought to be
regarded in the light of war measures, but which are usually represented by those against whom they
are directed as monstrous invasions of liberty. The struggle being over, the statute of 25 Edw. 3 is
reinstated as the sole definition of treason, and in this way it has become the subject of a sort of
superstitutious reverence.' 2 Stephen, History of the Criminal Law of England (1883) 250, 251; see also
3 Holdsworth (4th ed. 1935) 287.

Blackstone says: 'But afterwards, between the reign of Henry the fourth and queen Mary, and
particularly in the bloody reign of Henry the eighth, the spirit of inventing new and strange treasons
was revived; among which we may reckon the offences of clipping money; breaking prison or rescue,
when the prisoner is committed for treason; burning houses to extort money; stealing cattle by
Welshmen; counterfeiting foreign coin; wilful poisoning; execrations against the king; calling him
opprobrious names by public writing; counterfeiting the sign manual or signet; refusing to abjure the
pope; deflowering, or marrying without the royal licence, any of the king's children, sisters, aunts,
nephews, or nieces; bare solicitation of the chastity of the queen or princess, or advances made by
themselves; marrying with the king, by a woman not a virgin, without previously discovering to him
such her unchaste life; judging or believing (manifested by any overt act) the king to have been
lawfully married to Anne of Cleve; derogating from the king's royal stile and title; impugning his
supremacy; and assembling riotously to the number of twelve, and not dispersing upon proclamation
....' 4 Blackstone 86, 87.

[ Footnote 24 ] Rex v. Casement, (1917) 1 K.B. 98; Knott, Trial of Roger Casement, 184, 185.
[ Footnote 25 ] Chief among these were Coke and Blackstone. Coke emphasized the salutary effects of
the Statute of Edward III in limiting treason prosecution and strongly emphasized the overt act
requirement, probably quoting Bracton. Institutes of the Laws of England, 5th Ed. (1671) Part III, 14.
He used as examples overt acts which of themselves appear to evidence treasonable intent. Id., 2, 3, and
14. See 1 Hale, History of the Pleas of the Crown (1736) 86, 259. But we cannot be sure whether this
was intended to imply that acts from which intent would be less evident would suffice. Other authors
known on this side of the water leave us with little light on our particular problem.

Hale (History of the Pleas of the Crown, Emlyn ed. London, 1736) frequently uses terminology, found in
Coke and earlier writers, which might mean that the function of an overt act is to prove intent, saying
that the overt act is to 'manifest' or 'declare' the compassing of the king's death, and so forth. Id., 109.
But, as in the other writers, the statements are usually open as well to the interpretation that the act
must show translation of thought into action. In the latter sense, the act 'declares' intent in that it shows,
in the light of other evidence, that the defendant's thoughts were not mere idle desires. This is a
different thing from saying that the overt act must of itself display an unambiguously traitorous
character. Elsewhere Hale gives some support to the view that the act may itself be of an innocent
character. Dealing with the principle that words alone cannot be an overt act, he says that 'words may
expound an overt-act to make good an indictment of treason of compassing the king's death, which
overt-act possibly of itself may be indifferent and unapplicable to such an intent; and therefore in the
indictment or treason they may be joined with such an overt-act, to make the same applicable and
expositive of such a compassing.' Id., 115. He also declares that the mere meeting of persons with the
intent of plotting the king's death is a sufficient overt-act for the treason of compassing the king's death.
Id., 108, 109. These remarks, however, deal only with compassing the king's death, and little light is
given as to the overt act in connection with levying war and adhering to the enemy. With Coke, Hale
takes the position that a mere meeting of persons to conspire, though sufficient under the compassing
clause, is not sufficient for the levying- of-war clause. Id., 130.

Foster's view of the overt act does not seem materially different from Hale's. (A Report of Some
Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry; and
of other Crown Cases, 2d ed. 1791.) 'Overt acts undoubtedly do discover the man's intentions; but, I
conceive, they are not to be considered merely as evidence, but as the means made use of to effectuate
the purposes of the heart. ... though in the case of the King overt-acts of less malignity, and having a
more remote tendency to his destruction, are, with great propriety, deemed treasonable; yet still they
are considered as means to affectuate (sic), not barely as evidence of the treasonable purpose.' Foster
also repeats the assertion that the mere meeting of persons with intent to plan the king's death is a
sufficient overt act. Id., 195. However, his discussion, too, is confined to the treason of compassing, and
he says little that is helpful about levying war and adhering.

[ Footnote 26 ] These are: Trial of Sir Nicholas Throckmorton, 1 How.St.Tr. 869 (1 Mary, 1554); Trial of
Sir Richard Grahme (Lord Preston's Case), 12 How.St. Tr. 645 (2 William and Mary, 1691); Trial of Sir
John Freind, 13 How.St.Tr. 1, 4, 11 (8 William III, 1696); Trial of Sir William Parkyns, 13 How.St.Tr.
63, 67 (8 William III, 1696); Trial of Peter Cook, 13 How.St.Tr. 311, 346 ( 8 William III, 1696); Trial
of Captain Vaughn, 13 How.St.Tr. 485 (8 William III, 1696); Trial of William Gregg, 14 How.St.Tr.
1371 (6 Anne, 1708); Trial of James Bradshaw, 18 How.St.Tr. 415 (20 George II, 1746); Trial of Dr.
Hensey, 19 How.St.Tr. 1341 (32 George II, 1758); Trial of Francis De la Motte, 21 How.St.Tr. 687 (21
George III, 1781); and the Trial of David Tyrie, 21 How.St.Tr. 815(22) George III, 1782).

[ Footnote 27 ] Philip Guedalla characterizes the figures of the American Revolution as they occur in
British legend: 'There they are oddly shrunken; they dwindle into a provincial pettiness; and their voices
monotonously intone the dreary formulae of sedition.' Fathers of the Revolution, p. 8.

[ Footnote 28 ] Mr. Jefferson had referred to the Statute of Edward III as 'done to take out of the hands of
tyrannical Kings, and of weak and wicked Ministers, that deadly weapon, which constructive treason
had furnished them with, and which had drawn the blood of the best and honestest men in the
kingdom.' 1 Writings of Thomas Jefferson (Library ed. 1903) 215.

Later, as Secretary of State, he wrote: 'Treason ... when real, merits the highest punishment. But most
codes extend their definitions of treason to acts not really against one's country. They do not distinguish
between acts against the government, and acts against the oppressions of the government; the latter are
virtues; yet they have furnished more victims to the executioner than the former; because real treasons
are rare; oppressions frequent. The unsuccessful strugglers against tyranny, have been the chief
martyrs of treason laws in all countries.' 8 Jefferson's Writings 332. Compare 7th Annual Message,
1807, 3 Jefferson's Writing 451, 452.

[ Footnote 29 ] 2 Farrand, Records of the Federal Convention of 1787, 136.

[ Footnote 30 ] Art. VII, Sec. 2, of draft reported August 6, 1787. 2 Farrand 182.

[ Footnote 31 ] The debates are at 2 Farrand 345-350.

[ Footnote 32 ] James Wilson was not unlikely one of the authors of the treason clause, as a member of
the Committee on Detail. He had participated in the Pennsylvania treason trials in 1778 as one of the
defense counsel ( Respublica v. Malin, Pa. O. & T., 1 Dall. 33; Respublica v. Carlisle, 1 Dall. 35;
Respublica v. Roberts, 1 Dall. 39. In the Pennsylvania ratifying convention he made detailed statements
in praise of the clause without its having been challenged. 2 Elliott, Debates, 469, 487. Later, he
devoted a lecture to the clause in his law course delivered at the College of Philadelphia in 1790 and
1791. 3 Works of Hon. James Wilson (Bird Wilson, ed. 1804) 95-107.

[ Footnote 33 ] The convention did reject proposals that the states be denied authority to define treason
against themselves and that participation in a civil war between a state and the United States be
excepted. See 2 Farrand 345, 348-49; 3 id. 223.

[ Footnote 34 ] See note 16, supra; see also 9 Holdsworth (2d ed. 1938) 203-211.

[ Footnote 35 ] L'Esprit des Lois, Book XII, Chap. III.

[ Footnote 36 ] '... take with thee one or two more, that in the mouth of two or three witnesses every
word may be established.' Matt, xviii, 16.

[ Footnote 37 ] 'One witness shall not rise up against a man for any inquity, or for any sin, in any sin
that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be
established.' Deut. xix, 15.

[ Footnote 38 ] The following is a summary, taken from the Appendix to the Government's brief, of all
cases in which construction of the treason clause has been involved, omitting grand jury charges and
cases in which interpretation of the clause was incidental:

Whiskey Rebellion cases: United States v. Vigol, C.C.D.Pa.1795, 28 Fed.Cas. page 376, No. 16,621,
United States v. Mitchell, C.C.D.Pa.1795, 26 Fed.Cas. page 1277, No. 15,788, (constructive levying of
war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned).
House tax case: Case of Fries, C.C.D.Pa.1799, 9 Fed.Cas. page 826, No. 5,126; Id., C.C.D.Pa.1800, 9
Fed.Cas. page 924, No. 5,127 ( constructive levying of war, based on forcible resistance to execution of
a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 1807, 4
Cranch 75; United States v. Burr, C. C.D.Va.1807, 25 Fed.Cas. page 2, No. 14,692a; Id., C.C.D.Va.1807,
25 Fed. Cas. page 55, No. 14,693 (conspiracy to levy war held not an overt art of levying war). United
States v. Lee, C.C.D.C.1814, 26 Fed.Cas. page 907, No. 15,584 (sale of provisions a sufficient overt act;
acquittal). United States v. Hodges, C.C.D.Md.1815, 26 Fed.Cas. page 332,

No. 15,374 (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the
intent; acquittal). United States v. Hoxie, C.C. D.Vt.1808, 26 Fed.Cas. page 397, No. 15,407 (attack of
smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor,
C.C.D.Pa.1814, 27 Fed.Cas. page 628, No. 16,096 (proceeding under flag of truce with enemy
detachment to help buy provisions is too remote an act to establish adhering to the enemy). United
States v. Hanway, C.C.E.D.Pa.1851, 26 Fed.Cas. page 105, No. 15,299 (forcible resistance to execution
of Fugitive Slave Law, 9 Stat. 462, no levying of war). United States v. Greiner, D.C.E.D.Pa.1861, 26
Fed.Cas. page 36, No. 15,262 (participation as member of state militia company in seizure of a Federal
fort is a levying of war). United States v. Greathouse, C.C.N.D.Cal.1863, 26 Fed.Cas. page 18, No.
15,254 (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned).
Cases of confiscation of property or refusal to enforce obligations given in connection with sale of
provisions to the Confederacy: Hanauer v. Doane, 1871, 12 Wall. 342; Carlisle v. United States, 1873,
16 Wall. 147; Sprott v. United States, 1874, 20 Wall. 459; United States v. Athens Armory,
D.C.N.D.Ga.1868, 24 Fed.Cas. page 878, No. 14,473 (Mixed motive, involving commercial profit, does
not bar finding of giving aid and comfort to the enemy.) United States v. Cathcart and United States v.
Parmenter, C.C.S.D.Ohio, 1864, 25 Fed.Cas. page 344, No. 14,756; Chenoweth's Case (unreported: see
Ex parte Vallandigham, C.C.S.D.Ohio, 1863, 28 Fed.Cas. pages 874, 888, No. 16,816) (indictment bad
for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson
Davis, C.C.D.Va.1867-1871, 7 Fed.Cas. page 63, No. 3, 621a (argument that rebels whose government
achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the
indictment); see 2 Warren, Supreme Court in United States History ( 1934 ed.) 485-87; Watson, Trial
of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 1903, 2
Philippine 703; United States v. De Los Rayos, 1904, 3 Philippine 349 (mere possession of rebel
commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions
reversed); United States v. Lagnason, 1904, 3 Philippine 472 (armed effort to overthrow the
government is levying war). United States v. Fricke, D.C.S.D.N.Y.1919, 259 F. 673 (acts 'indifferent' on
their face held sufficient overt acts). United States v. Robinson, D.C.S.D.N.Y.1919, 259 F. 685 (dictum,
acts harmless on their face are insufficient overt acts). United States v. Werner, D.C.E.D.Pa.1918, 247 F.
708, affirmed 1919, 251 U.S. 466 , 40 S.Ct. 259 (act indifferent on its face may be sufficient overt act
). United States v. Haupt, 7 Cir., 1943, 136 F.2d 661 (reversal of conviction on strict application of
two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt
acts). Stephan v. United States, 6 Cir., 1943, 133 F.2d 87 (acts harmless on their face may be sufficient
overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 2 Cir., 1943, 137
F.2d 888.

[ Footnote 39 ] In 1942 the Office of War Information suggested to Mr. Stephen Vincent Benet a short
interpretative history of the United States for translation into many languages. In it he says:

'It had been a real revolution-a long and difficult travail, full of hardship, struggle, bitterness, and the
overturning of old habits and customs. But it did not eat its children and it had no aftermath of
vengeance. The Hessians who stayed in the country were not hunted down and annihilated. Some
loyalists who returned were harshly treated-others came back and settled down peacefully as citizens of
the new state. There was neither blood bath nor purge. There was bitter political dispute-but no small
group of men plotted in secret to overthrow the government by force of arms. There were a couple of
minor and local revolts, based on genuing grievances-Shays' Rebellion in 1786-the Whisky Rebellion in
1794. Both collapsed when the government showed itself able to put down rebellion-and nobody was
hanged for either of them. Shays and his temporary rebels received a general amnesty-the leaders of the
Whisky Rebellion were convicted of treason and then pardoned by the President.' Benet, America, pp.
49-50. Speaking of the War between the States he says: 'Again, there was no blood purge. There were
no mass executions. No heads rolled. 'The handful of fanatics who had plotted the assassination of
Lincoln and other government leaders were executed. His actual murderer was tracked down and shot.
The half-crazy officer who commanded a notorious southern prison camp was hanged. The former
President of the Confederacy, Jefferson Davis, was kept for a while in prison with certain of his
associates and then released. But that was all. 'Not one of the great southern generals or statesmen, Lee,
Johnson, Stephens, Hampton, Longstreet-was even tried for treason.' Id., 78.
[ Footnote 40 ] Apart, of course, from levying war, which is not charged in this case and is not involved
in the controversy.

[ Footnote 41 ] Hallam in his Constitutional History of England (1827) said: 'Nothing had brought so
much disgrace on the councils of government, and on the administration of justice, nothing more
forcibly spoken the necessity of a great change, than the prosecutions for treason during the latter years
of Charles II., and in truth during the whole course of our legal history. The statutes of Edward III. and
Edward VI., almost set aside by sophistical constructions, required the corroboration of some more
explicit law; and some peculiar securities were demanded for innocence against that conspiracy of the
court with the prosecutor, which is so much to be dreaded in all trials for political crimes.' v. 2, p. 509.

Continuing, after comment on particular cases, he said: 'In the vast mass of circumstantial testimony
which our modern trials for high treason display, it is sometimes difficult to discern, whether the great
principle of our law, requiring two witnesses to overt acts, has been adhered to; for certainly it is not
adhered to, unless such witnesses depose to acts of the prisoner, from which an inference of his guilt is
immediately deducible.' v. 2, p. 516.

[ Footnote 42 ] There are, of course, rare cases where adherence might be proved by an overt act such
as subscribing an oath of allegiance or accepting pay from an enemy. These might supplement proof of
other acts of aid and comfort, but no such overt acts of adherence are involved in this case.

[ Footnote 43 ] Of course, the Constitution does not require a treason to be proved by any single overt
act. It may be grounded upon any number, each to be supported by the testimony of two witnesses. We
speak in the singular but what we say applies as well to a series of acts or to the sum of many acts.

[ Footnote 44 ] We are not concerned here with any question as to whether there may be an offense of
attempted treason.

[ Footnote 45 ] The verdict in this case was a general one of guilty, without special findings as to the
acts on which it rests. Since it is not possible to identify the grounds on which Cramer was convicted,
the verdict must be set aside if any of the separable acts submitted was insufficient. Stromberg v.
California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A.L.R. 1484; Williams v. North Carolina, 317 U.S.
287, 292 , 63 S.Ct. 207, 210, 143 A.L.R. 1273. The tenth act charged, the third submitted, was based
on five falsehoods told by Cramer after his arrest to agents of the Federal Bureau of Investigation,
admittedly for the purpose of shielding Werner Thiel. After some time he recanted the falsehoods and
told the truth. Thiel had already been taken into custody when the interviews occurred. The prisoner
contends that lying to his jailer does not constitute treason, that in the whole history of treason no
precedent can be or is cited for holding a false statement while under interrogation after imprisonment
is treason, that in any event it amounted to no more than an attempt which was not consummated, that
there was no right to interrogate Cramer under the circumstances, and that admissions made out of
court are rendered inadmissible as proof of overt acts in view of the requirement that the act be proved
by two witnesses or by 'Confession in Open Court.' The use of this evidence as an overt act of treason is
complicated, and we intimate no views upon it in view of reversal on other grounds. Were we to affirm
we should have first to resolve these questions against the prisoner.
[ Footnote 46 ] The testimony of Norma Kopp was probably the most damaging to the prisoner. She was
a German alien who had been in the United States since 1928, but had never become a citizen. She had
long and intimately known both Cramer and Thiel and became engaged to marry Thiel four days before
he left for Germany. She knew him to be a Nazi. She received at Westport, Conn., where she was
working as a laundry and kitchen maid, a note from Cramer, asking her to come to New York for an
undisclosed reason. She came and Cramer then, she says, told her that Thiel was back, that he came
with others, that six of them landed from a submarine in a rubber boat in Florida, that they brought
much money 'from Germany from the German Government,' that Cramer was keeping it for Thiel in his
safety deposit box, that these men got instructions from a 'sitz' in the Bronx as to where to go, but
Cramer said he did not know what he meant by 'sitz.' Cramer said he expected Thiel that evening at his
apartment, but Thiel did not come. Cramer failed to bring about her meeting with Thiel, as he had
promised her. She was at Kolping House when Cramer was taken into custody. The following day
pictures of the saboteurs and the story of their landing and arrest was in the newspapers. She was taken
into custody and questioned by the Federal Bureau of Investigation.

[ Footnote 47 ] Cramer left a note for 'William Thomas,' the name under which Thiel was going, at the
Commodore Hotel, where he was staying, saying that Miss Kopp had come and asking Thiel to meet
them at Thompson's Cafeteria at 4:00 that afternoon or call them at 7:00 that evening at Kolping House.
Thiel had been arrested and did not keep the rendezvous nor make the call. About 10:50 p.m. June 27,
Cramer was taken into custody at Kolping House and taken to the Bureau's headquarters in New York.
He told the agents that the man he had been with at Thompson's Cafeteria was William Thomas, that
Thomas had worked in a factory on the West Coast since March of 1941 and had not been out of the
United States. When asked if the true name of William Thomas was not Werner Thiel, he replied that it
was, and that Thiel was using an assumed name because of difficulties with his draft board. He stated
that the money belt which Thiel had given him contained only $200, which Thiel owed him, and that
the $3500 in the safety deposit box belonged to him and had been obtained from the sale of securities.
The gravity of the offense with which he might be confronted was intimated to Cramer, and he asked if
he might speak with agent Ostholthoff alone. To him he recanted his previous false statements and
admitted that he knew Thiel had come from Germany, probably on a mission for the German
Government, which he thought was 'to stir up unrest among the people and probably spread
propaganda.' He repeated this in the presence of other agents and stated that he had lied in order to
protect Thiel. Cramer authorized the agents to search his room and to open his safe deposit box at the
Corn Exchange Bank and remove the contents thereof.

[ Footnote 48 ] As summarized in the opinion of the Circuit Court of Appeals, these are: 'Writing Thiel
in Germany, November 25, 1941, appellant said that 'defiance, boldness, will and sharp weapons will
decided (sic) the war, and the German Army and the German people are not lacking in these,' that he
was 'very discontent' and sat here 'in pitiable comfort,' and that he had refused a job in Detroit at $100
per week because 'I do not want to soil my hands with war work.' To his family in Germany he wrote
December 3, 1941, of 'the gigantic sacrifices which the glorious, disciplined German Army is making
from day to day for the Homeland,' that 'every day here I hear the shrieks of hatred and the clamor for
annihilation from the hostile foreigners,' and that a lost war 'means today a complete extirpation of the
German nation.' To a friend in Chicago he wrote April 21, 1942, objecting to conscription 'after one has
spent almost half a lifetime here in the States,' and saying 'personally I should not care at all to be
misused by the American army as a world conqueror.' All the letters were written in German.'

[ Footnote 49 ] On the Government's case a witness testified that he went to Cramer's apartment, told
him that he was a representative of the United States Government on a pledge drive and asked him if he
would like to sign a pledge for a bond. Cramer said he was not interested and, in reply to the question
whether he would sign up for a stamp, he said he was not even interested in the purchase of a 10-cent
stamp. He then closed the door. The witness rang again and Cramer opened the door again and then
closed it.
Normal Kopp testified that Cramer told her that the 'Minute Man' called at his door 'and he got kind of
fresh and he closed the door at him.' Miss Kopp's testimony was objected to and was offered as 'showing
the general motive and disposition, in so far as loyalty to the country is concerned, of this defendant,'
and as probative on the issue of intent. The court received it on the theory that incidents of that sort
might corroborate or the jury might find it corroborated certain other testimony offered by the
Government indicating a motive or intent.

[ Footnote 50 ] The defendant, having testified in his own behalf, was under cross- examination. He was
asked: 'Q. Now sir isn't it the fact that you did write to Germany in the year 1941 several letters in
which you discussed the United States in an unfriendly manner? A. I do not know unfriendly. I would
say that I have criticized a few persons. I have never criticized the United States as such.' He was then
asked whether in 1941 he did not receive letters from his nephew Norbert and whether it was not the
fact that Cramer's brother, Norbert's father, 'through Norbert warned you that your letters discussed the
United States in such an unfriendly fashion that Norbert's father feared that you would be put on the
blacklist, because according to him the letters went through an American censorship?' Objection was
duly made that the letters referred to were from someone else and could not bind the defendant. The
objection was overruled, and the witness answered: 'Well, I have received a letter from my nephew
Norbert which mentions that, I admit that.' A motion to strike the answer was denied, and exceptions to
both rulings were duly taken.

The Circuit Court of Appeals observed that, 'Of course, these expressions of opinion could not properly
bind appellant; and the objection might wisely have been sustained.' But it concluded that the ruling
was not sufficiently prejudicial to call for reversal.

While defendant was under cross-examination, he was asked, 'By the way, Mr. Witness, you have
testified at length here about your various studies and your various occupations and interests. Were you
ever interested in law? A. No. sir; I was not. Q. Isn't it a fact, sir; that at one time you were particularly
interested in the law of treason? A. No, sir; I have never been interested in that.' The District Attorney
then offered a complete text of the Constitution of the United States as printed in the New York Times in
1937. It had been found in Cramer's room and on it were marks which he admitted making. One of the
marks was opposite the paragraph which defines treason. The District Attorney offered it for
impeachment and also contended it to be of probative force to show 'that this witness had in mind at
the time these events which are the subject of the indictment here occurred, what the law of treason
was.' Against objection the court admitted it as material and relevant and declined to limit the grounds
on which it was received.

It appears without dispute that the marks on this copy of the Constitution were made at a time not
definitely established but clearly before the United States entered the war and when the policy of the
Government was declared to be one of neutrality.

The treason paragraph of the Constitution was one of six provisions which he marked. Another was the
provision of Article 1 of Section 7, that if any bill passed by the Congress shall not be returned by the
President within ten days after having been presented to him, the same shall be a law. Another, the
provision of Article 1, Section 8, that Congress shall have the power to declare war, grant letters of
marque and reprisal and make rules concerning captures on land and water. A third was Article 1,
Section 9, which provides that no bill of attainder or ex post facto law shall be passed. A fourth was that
provision of Article 1, Section 9, that no title of nobility shall be granted by the United States. Another
was the portion of Article 2, Section 1, which sets forth the President's oath.

The petitioner was naturalized in 1936, and so far as appears, came into possession of the Constitution
in 1937.
[ Footnote 51 ] 2 Farrand 347.

[ Footnote 52 ] E.g., Hartzel v. United States, 322 U.S. 680 , 64 S.Ct. 1233.

[ Footnote 53 ] Congress has prohibited obtaining defense information in certain ways, 50 U.S.C. 31, 50
U.S.C.A. 31; certain disclosures of information, 50 U.S.C. 32, 50 U.S.C.A. 32; certain seditious and
disloyal acts in war time, 50 U.S.C. 33, 50 U.S.C.A. 33; and has enacted such statutes as the Trading
with the Enemy Act, 50 U.S.C. Appendix, 3, 50 U.S.C.A. Appendix, 3.

[ Footnote 54 ] The Government's Appendix includes such examples as the following:

Danish Penal Code.-'Sec. 105. One who commits an act by virtue of which a foreign service of military
intelligence is set up, or who assists directly or indirectly in its functioning on the territory of the State
of Denmark, shall be punished by imprisonment up to two years and in cases of extenuating
circumstances by detention.'

Polish Code.-'Art. 100, Sec. 1. Whoever in time of war acts in favor of the enemy or to the damage of
the Polish armed forces or allied forces shall be punished by imprisonment not under ten years or for
life.

'Art. 100, Sec. 2. If the offender unintentionally acted, he shall be punished by imprisonment not to
exceed three years or by detention not to exceed three years.'
French Code of 1939.-'Art. 103. Whoever, knowing about the plans of an act of treason or espionage,
does not report them to the military, administrative, or judicial authorities as soon as he acquired
knowledge shall be punished by penalties provided by Art. 83 for the attack on the exterior safety of the
State.'

The French Code (Harboring) provides in Article 85 that every Frenchman and every foreigner shall be
punished as an accomplice or for harboring:

'(1) Who, knowing the intentions of the perpetrators of major crimes and minor crimes against the
exterior safety of the State, furnishes them subsidies, means of existence, lodging, place of asylum or
meeting place.
'(2) Who, knowingly carries the correspondence of the perpetrators of a major or minor crime or
knowingly facilitates them in any manner whatsoever in finding, harboring, transporting, or
transmitting, the objects of a major or minor crime;
'(3) Who harbors knowingly the objects or instruments which served or should serve for the
commission of the crime or offense or material objects or documents obtained through a crime or
offense.'
[ Footnote 55 ] 2 Farrand 348.

[ Footnote 56 ] See Brooks, The World of Washington Irving, 73 n.

[ Footnote 1 ] It is well established that the overt act and the intent are separate and distinct elements of
the crime of treason under the Constitution. See Ex parte Bollman, 4 Cranch. 75, 126; United States v.
Burr, 25 Fed.Cas. pages 2, 13, 14, No. 14,692a; United States v. Lee, 26 Fed.Cas. page 907, No. 15,584;
United States v. Vigol, 28 Fed.Cas. page 376, No. 16,621; United States v. Hanway, 26 Fed.Cas. pages
105, 126, No. 15,299; United States v. Greiner, 26 Fed.Cas. pages 36, 39, No. 15,262; United States v.
Greathouse, 26 Fed.Cas. pages 18, 22 No. 15,254; United States v. Werner, D.C., 247 F. 708, 709, 710;
United States v. Fricke, D.C ., 259 F. 673, 677; United States v. Robinson, D.C., 259 F. 685, 690; United
States v. Stephan, D.C., 50 F.Supp. 738, 742, 743, affirmed 6 Cir., 1943, 133 F.2d 87, 99. Chief Justice
Marshall ruled in United States v. Burr, 25 Fed.Cas. pages 52, 54, No. 14,692h, that it was in the
discretion of the prosecutor to present evidence of te intent before proof of an overt act. And see United
States v. Lee, supra.

[ Footnote 2 ] Carlisle v. United States, 16 Wall. 147, 150, 151; Sprott v. United States, 20 Wall. 459,
463, 464; United States v. Hodges, 26 Fed.Cas. pages 332, 334, No. 15,374; Charge to Grand Jury-
Treason, 30 Fed.Cas. pages 1032, 1034, No. 18,270; see also 1 East, Pleas of the Crown (1806) pp. 77-
81; Warren, What is Giving Aid and Comfort to the Enemy (1918), 27 Yale L.J. 331, 343-345; Hazard
and Stern, 'Exterior Treason' (1938), 6 U. of Chi.L.Rev. 77, 84, 85. But a mere showing of aid and
assistance to an alien enemy permanently residing in the United States without any showing that the
enemy alien has designs against the interest of the United States, does not without more establish an act
of treason. See United States v. Fricke, D.C., 259 F. 673, 682.

[ Footnote 3 ] See note 1, supra.

[ Footnote 1 ] Accord: William Gregg, 14 How.St.Tr. 1371; Trial of Dr. Hensey, 19 How.St.Tr. 1341.
Both of these involved indictments for compassing and adhering, the overt acts being letters of
intelligence intercepted before they reached the enemy.

[ Footnote 2 ] In a letter of April 24, 1792, Jefferson, then Secretary of State, wrote: 'Treason, ... when
real, merits the highest punishment. But most codes extend their definitions of treason to acts not really
against one's country. They do not distinguish between acts against the government and acts against the
oppressions of the government; the latter are virtues; yet they have furnished more victims to the
executioner than the former; because real treasons are rare, oppressions frequent. The unsuccessful
strugglers against tyranny, have been the chief martyrs of treason law in all countries.' See 8 Writings
of Thomas Jefferson (Library ed. Wash.1903) p. 332.
G.R. No. L-856 April 18, 1949
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
SUSANO PEREZ (alias KID PEREZ), defendant-appellant.
Crispin Oben and Isidro Santiago for appellant.
Assistance Solicitor General Manuel P. Barcelona and Solicitor Esmeraldo Umali for appellee.
TUASON, J.:
Susano Perez alias Kid Perez alias Kid Perez was convicted of treason by the 5th Division of the People's
Court sitting in Cebu City and sentenced to death by electrocution.

Seven counts were alleged in the information but the prosecution offered evidence only on counts 1, 2,
4, 5 and 6, all of which, according to the court, were substantiated. In a unanimous decision, the trial
court found as follows:

"As regards count No. 1

Count No. 1 alleges that the accused, together with the other Filipinos, recruited, apprehended
and commandeered numerous girls and women against their will for the purpose of using
them, as in fact they were used, to satisfy the immoral purpose and sexual desire of Colonel
Mini, and among such unfortunate victims, were Felina Laput, Eriberta Ramo alias Miami
Ramo, Eduarda Daohog, Eutiquia Lamay, Feliciana Bonalos and Flaviana Bonalos.

It would be unnecessary to recite here the testimonies of all the victims of the accused; it
sufficient to reproduce here succinctly the testimony of Eriberta Ramo. She testified that on June
15, 1942, the accused came to her house to get her and told her that she was wanted in the
house of her aunt, but instead, she was brought to the house of the Puppet Governor Agapito
Hontanosas; that she escaped and returned to Baclayon her hometown; that the accused came
again and told her that Colonel Mini wanted her to be his Information Clerk; that she did not
accept the job; that a week later the accused came to Baclayon to get her, and succeeded in
taking some other girls Puppet Governor Agapito Hontanosas; that Governor Hontanosas told
her that Colonel Mini wanted her to be his wife; that when she was brought to Colonel Mini the
latter had nothing on but a "G" string; that he, Colonel Mini threatened her with a sword tied
her to a bed and with force succeeded in having carnal knowledge with her; that on the
following night, again she was brought to Colonel Mini and again she was raped; that finally
she was able to escape and stayed in hiding for three weeks and only came out from the hiding
when Colonel Mini left Tagbilaran.

"As regards count No. 2

Count No. 2 of the information substantially alleges: That accused in company with some
Japanese and Filipinos took Eriberta Ramo and her sister Cleopatra Ramo from their home in
Baclayon to attend a banquet and a dance organized in honor of Colonel Mini by the Puppet
Governor, Agapito Hontanosas in order that said Japanese Colonel might select those first who
would later be taken to satisfy his carnal appetite and that by means of threat, force and
intimidation, the above mentioned two sister were brought to the headquarters of the Japanese
Commander at the Mission Hospital in Tagbilaran where Eriberta Ramo was forced to lived a
life of shame. All these facts alleged in count No. 2 were testified to by said witnesses Eriberta
Ramo her mother Mercedes de Ramo. It is not necessary here to recite once more their
testimony in support of the allegations in court No. 2; this Court is fully convinced that the
allegation in said count No. 2 were fully substantiated by the evidence adduced.

"As regards count No. 4

 Count No. 4 substantially alleges that on July 16, 1942, the two girls named Eduardo S. Daohog
and Eutiquia Lamay, were taken from their homes in Corella, Bohol, by the accused and his
companion named Vicente Bullecer, and delivered to the Japanese Officer, Dr. Takibayas to
satisfy his carnal appetite, but these two, the accused Susano Perez and his companion Vicente
Bullecer, before delivering them to said Japanese Officer, satisfied first their lust; the accused
Susano Perez raping Eduarda S. Daohog and his companion, Vicente Bullecer, the other girl
Eutiquia Lamay. Eduarda S. Daohog, testifying, said: that while on the way to Tagbilaran, the
accused though force and intimidation, raped her in an uninhabited house; that she resisted
with all her force against the desire of the accused, but of no avail; that upon arriving in
Tagbilaran, she was delivered to the Japanese Officer named Takibayas who also raped her.
Eutiquia Lamay testified that on July 16, 1942, the accused and his companion, Bullecer, went
to her house to take her and her sister; that her sister was then out of the house; that the
accused threatened her with a revolved if she refuses to go; that she was placed in a car where
Eduarda Daohog was; that while they were in the car, the accused carried Eduarda out of the
car, and their companion Bullecer took the other witness (Eutiquia Lamay); that when the
accused and Eduarda returned to the car, the latter; Eduarda, covered her face, crying; that
later, she and Eduarda were taken to the Governor's house; that on arriving and in the presence
of the Puppet Governor Hontanosas, the Governor exclaimed: "I did not call for these girls": but
the accused replied saying: "These girls talked bad against the Japanese , and that is why we
arrested them"; that the said Governor Hontaosas then, said: "Take them to the Japanese "; that
the accused and Bullecer brought the two girls to the Japanese headquarters; that Eduarda was
taken to one room by the Japanese Captain called Dr. Takibayas, and she (Eutiquia Lamay) was
taken to another room by another Japanese living in that house; that she was raped by that Jap
while in the room; that she resisted all she could, but of no avail.

In the light of the testimonies of these two witnesses, Eduarda S. Daohog and Eutiquia Lamay,
all the allegations in Court No. 4 were fully proven beyond reasonable doubt.

"As regards count No. 5

Count No. 5 alleges: That on or about June 4, 1942, the said accused commandeered Feliciana
Bonalos and her sister Flaviana Bonalos on the pretext that they were to bee taken as witnesses
before a Japanese Colonel in the investigation of a case against a certain Chinese (Insik Eping),
and uponarriving at Tagbilaran, Bohol, the accused brought the aforesaid two girls to the
residence of Colonel Mini, Commander of the Japanese Armed Forces in Bohol and by means of
violence threat and intimidation, said Japanese Colonel abused and had sexual intercourse with
Flaviana Bonalos; that the accused subsequently of Colonel Mini and through violence, threat
and intimidation, succeeded in having carnal knowledge with her against her will; that two
days, later, upon the pretext of conducting the unfortunate girls to their home, said accused
brought the other girls Feliciana Bonalos to a secluded place in Tagbilaran, Bohol, and in the
darkness, by mean of threat and violence had carnal knowledge with her against her will.

Feliciana Bonalos testifying in this count, declared that the accused came to get her on the
pretext that she was to be used as witness in a case affecting certain Chinaman before Colonel
Mini; that she and her younger sister Flaviana were brought in a car driven by the accused;
they were brought to the house of Colonel Mini; that sister Flaviana was conducted into a room
and after remaining in the same for about an hour, she came out with her hair and her dress in
disorder; that Flaviana told her immediately that she was raped against her will by Colonel
Mini; that she (Feliciana), after leaving the residence of said Jap officer, was taken by Perez to
an uninhabited house and there by threat and intimidation, the accused succeeded in raping
her; that when she returned to her (the witness), Flaviana was crying; that the following day
while conducting the two girls back to their hometown, she (Feliciana) was also raped by the
accused in an uninhabited house, against her will.
 Victoriana Arayan (mother of Feliciana and Flaviana Bonalos) testified as following: That on
June 15, 1942, the accused came and told her that the Japanese needed her daughters to be
witnesses; that accordingly, he daughters, under that understanding, started for Tagbilaran;
that later, she went to Tagbilaran to look for her daughters and she found them in the office of
the Puppet Governor; that on seeing her, both daughters wept and told her that they were
turned over to the Japanese and raped them; that her daughter Flaviana told her (the witness)
that after the Japanese had raped her the accused also raped her (Flaviana) in an uninhabited
house; that the accused did not permit her two daughter to return home on the pretext that the
Puppet Governor was then absent and in the meanwhile they stayed in the house of the accused
Perez; that when her daughter returned to her house ultimately, they related to her (mother)
what happened; that both daughters told her they would have preferred death rather than to
have gone to Tagbilaran; that Feliciana told her (the mother) that the accused had raped her.

The information give by Feliciana to her mother is admitted in evidence as a part of the res
gestae regardless of the time that had elapsed between the occurrence and the time of the
information. In the manner these two witnesses testified in court, there could be no doubt that
they were telling the absolute truth. It is hard to conceived that these girls would assume and
admit the ignominy they have gone through if they were not true. The Court is fully convinced
that all the allegations contained in Court No. 5 have been proven by the testimonies of these
two witnesses beyond reasonable doubt.

"As regards count No. 6

Count No. 6, alleges: That the accused, together with his Filipino companion apprehended
Natividad Barcinas, Nicanora Ralameda and Teotima Barcinas, nurses of the provincial hospital,
for not having attended a dance and reception organized by the Puppet Governor in honor of
Colonel Mini and other Japanese high ranking officers, which was held in Tagbilaran market
on June 25, 1942; that upon being brought the Puppet Governor, they were severely
reprimanded by the latter; that on July 8, 1942, against said nurses were forced to attend
another banquet and dance in order that the Jap officers Mini and Takibayas might make a
selection which girls would suit best their fancy; that the real purpose behind those forcible
invitations was to lure them to the residence of said Japanese Officer Mini for immoral
purposes.

Natividad Barcinas, a Lieutenant of the P.A., testified at length. She declared: That on June 29,
1942, she and companion nurses, saw the accused coming to the hospital with a revolver and
took them on a car to the office of the Puppet Governor where they were severely reprimanded
by the latter for not attending the dance held on June and receptions was to select from among
them the best girl that would suit the fancy of Colonel Mini for immoral purposes that she and
her companions were always afraid of the accused Perez whenever he came to said hospital;
that on one occasion, one of the nurses on perceiving the approach of the accused, ran up into
her room, laid down on bed and simulated to be sick; that said accused, not satisfied, went up
into the room of that particular nurse and pulled out the blanket which covered her and telling
her that it was only her pretext that she was sick.

The testimony of Lt. Natividad Barcinas is fully corroborated by that of Nicanora Ralameda. Said
testimony need not be reproduced here.

In a carefully written brief for the appellant these findings are not questioned, but it is contended that
the deeds committed by the accused do not constitute treason. The Solicitor General submits the
opposite view, and argues that "to maintain and preserve the morale of the soldiers has always been,
and will always be, a fundamental concern of army authorities, for the efficiency of rests not only on its
physical attributes but also, mainly, on the morale of its soldiers" (citing the annual report of the Chief
of Staff, United State Army, for the fiscal year ending June 30, 1933).
If furnishing women for immoral purposes to the enemies was treason because women's company kept
up their morale, so fraternizing with them, entertaining them at parties, selling them food and drinks,
and kindred acts, would be treason. For any act of hospitality without doubt produces the same general
result. yet by common agreement those and similar manifestation of sympathy and attachment are not
the kind of disloyalty that are punished as treason.

In a broad sense, the law of treason does not prescribe all kinds of social, business and political
intercourse between the belligerent occupants of the invaded country and its inhabitants. In the nature
of things, the occupation of a country by the enemy is bound to create relations of all sorts between the
invaders and the natives. What aid and comfort constitute treason must depend upon their nature
degree and purpose. To draw a line between treasonable and untreasonable assistance is not always
easy. The scope of adherence to the enemy is comprehensive, its requirement indeterminate as was said
Cramer vs. United States. 89 Law. ed., 1441.

As general rule, to be treasonous the extent of the aid and comfort given to the enemies must be to
render assistance to them as enemies and not merely as individuals and in addition, be directly in
furtherance of the enemies' hostile designs. To make a simple distinction: To lend or give money to an
enemy as a friend or out of charity to the beneficiary so that he may buy personal necessities is to assist
him as individual and is not technically traitorous. On the other hand, to lend or give him money to
enable him to buy arms or ammunition to use in waging war against the giver's country enhance his
strength and by same count injures the interest of the government of the giver. That is treason.
(See United States vs. Fricke, 259 F., 673; 63 C.J., 816, 817.)

Applying these principles to the case at bar, appellant's first assignment of error is correct. His
"commandeering" of women to satisfy the lust of Japanese officers or men or to enliven the
entertainment held in their honor was not treason even though the women and the entertainment
helped to make life more pleasant for the enemies and boost their spirit; he was not guilty any more
than the women themselves would have been if they voluntarily and willingly had surrendered their
bodies or organized the entertainment. Sexual and social relations with the Japanese did not directly
and materially tend to improve their war efforts or to weaken the power of the United State. The acts
herein charged were not, by fair implication, calculated to strengthen the Japanese Empire or its army
or to cripple the defense and resistance of the other side. Whatever favorable effect the defendant's
collaboration with the Japanese might have in their prosecution of the war was trivial, imperceptible,
and unintentional. Intent of disloyalty is a vital ingredient in the crime of treason, which, in the absence
of admission, may be gathered from the nature and circumstances of each particular case.

But the accused may be punished for the rape of Eriberta Ramo, Eduarda Daohog, Eutiquia Lamay and
Flaviana Bonalos as principal by direct participation. Without his cooperation in the manner above
stated, these rapes could not have been committed.

Conviction of the accused of rapes instead of treason finds express sanction in section 2 of
Commonwealth Act No. 682, which says:

Provided further, That where, in its opinion, the evidence is not sufficient to support the offense
(treason) charged, the People's Court may, nevertheless, convict and sentence the accused for
any crime included in the acts alleged in the information and established by the evidence.

All the above mentioned rapes are alleged in the information and substantiated by the evidence.

Counsel assails the constitutionality of this of his provision as violative of section 1, paragraph 17,
Article III of the Constitution, which guarantees to an accused the right "to be informed of the nature
and cause of the accusation against him." The contention is not well taken. The provision in requires
that the private crimes of which an accused of treason may be convicted must be averred in the
information and sustained by evidence. In the light of this enactment, the defendant was warned of the
hazard that he might be founded guilty of rapes if he was innocent of treason and thus afforded an
opportunity to prepare and meet them. There is no element of surprise or anomaly involved. In facts
under the general law of criminal procedure convicted for crime different from that designated in the
complaint or information is allowed and practiced, provided only that such crime "is included or
described in the body of the information, and afterwards justified by the proof presented during the
trial." (People vs. Perez, 45 Phil., 599.)

The defendant personally assaulted and abused two of the offended girls but these assaults are not
charged against him and should be ruled out. The crime of coercion alleged and founded on count No.
6. need not be noticed in view of the severity of the penalty for the other crimes which he must suffer.

We find the defendant guilty of four separate crimes of rape and sentence him for each of them to an
indeterminate penalty of from 10 year of prision mayor to 17 year and 4 months of reclusion temporal,
with the accessories of law, to indemnify each of the offended women in the sum of P3,000, and to pay
the costs; it being understood that the total duration of these penalties shall not exceed forty years.

Moran, C.J., Feria, Perfecto, Bengzon, Briones and Reyes, JJ., concur.
Paras, J., reserves his vote.
Montemayor, J., concurs in the result.

Separate Opinions

PABLO, M., disidente:

Disiento. En mi opinion, los hechos probados constituyen delito de traicion.

El acusado de buena reeputacion en Bohol para ponerlas a disposicion de los oficiales del ejercito
enemigo, ha ayudado a ellos en la obra de destruccion. En la guerra se emplea la destruccion para
triunfur, y la destruccion se realiza en las cosas y en las personas. Inutilizar para el trabajo o para la
guerra a los habitanesdel pais invandido es destruirles en mayor o menor grado y violar o deshonrar a
las mujereses tambien destruirles material y moralmente y es peor aun que matar y aniquilar. En el caso
presente, el acusado ayudoal Coronel Mini y Dr. Takibayas en deshonrar a varias senoritas,poniendolas
en una situacion peor que la de las esclavas. Si el reclutar a hombres o mujeres para ser obligados a
constuir trincheraspara el ejercito invasor constituye delito de traicion; si el apoderarsedel arroz de los
ciudadanos en sus casas para darselo a los soldadoshambrientos del ejercito japones es traicion; por que
no ha de constituirtraicion el reclutar a senoritas para ser utilizadas por los enemigosen sus desos
bestiales, como un medio de entretenimiento o alivio de sus trabajos? Flaviana y Feliciana Bonalos,
ilegalmente arrestadas y entregadas despues a los dos oficiales-bestias, en su declaracion, han dicho que
hubieran preferido morir que ser violadas.

El argumento del Procurador General, que merece seria consideracion, es del tenor siguiente:

In the United States Army, and we believe this is also true in the Japanese Imperial Forces, a unit
known as the United Services Organization (U.S.O.)functions with the primordial aim and view
to keep at peak the morale of the soldiers. To achieve this, varied forms of entertainment like
movies, dancer, stage show and the like are provided for at an enormous expense. In fine, the
soldiers are surrounded with all the comfort and opportunities that they ordinarily enjoy in
their civilian life. The reason for this is to tone their nerves and minimized as much as possible,
they heavy strain on them incident to the nature of their mission in time of war. Such
entertainment because the more imperative when it comes to soldiers who are assigned
 overseas, on a foreign soil, in a no man's land, devoid of the inspiring association of their
families, girl friends and those dearest to them.

. . . Clearly, therefore, appellant provident them with what should have been the burden of the
Japanese Imperial Forces, relieving the latter of the trouble, expense, and difficulty of sending
over to these Islands Japanese women to entertain their soldiers to bolster up their morale. In
other words, the services of the Japanese women who were so replaced by ours, through the
efforts of the appellant could be diverted to other important phases of military activities either
in the homeland or in this sector. Hence, the aid and comfort to the enemy is evident.

Si el Coronel Mini y Dr. Takibayas del ejercito japones no encontraban otroconsuelo o solaz para
olividar sus preocupaciones y ytritezas mas que en saciar su lujuria, entonces el proporcionarles
mujeres contra la voluntad de estas es ayudssrles en recuperar entusiasmos perdidos e infundirles
nuevo vigor para proseguir la guerra de conquista. Bien sabido esta que los soldados no son maquinas
de acero que pueden estar peleando todas las horasde todos los dias; necesitan tiempo de descanso para
recuperar fuerzas perdidas, de entretennimiento para olvidar lugubres pensamientos y franco
esparcimiento para vigorizar su espiritu. Si para el Coronel Mini y Dr. Takibayas, el violar a las
senoritas reclutadas por el acusado era buenarecompensa de sus esfuerzos militares, entonces para ellos
vale la penade exponer la vida en la luncha porque despues de todo quedan bien compensados. Que
mayor satisfaccion para ellos como la de disfrutar libremente de las senoritas de la provincia con la
ayuda del acusado? Poresa satisfaccion, redoblarian sus enfuerzos de conquista para tener otras
oportunidades de saciar sus apetitos bestiales. Bajo tales inclinaciones morbosas, darles entretenimiento,
solaz y esparcimiento es ayudarles en la guerra.

No es exagerado suponer que dichos oficiales japoneses hayan dejado en su pais hijos, esposas y
madddres a quienes quieren de corazon, y en sus momentosde soledad, de tristeza y de nostalgia no ess
imposible que se acuerden de ellos y lleguen a decir para si mismos: "Que sacamos de esta guerra de
invasion, dejando a nuestros hijos, nuestros hijos, nuestras familias ynuestros hogares abandonados solo
para satisfacer las ambiciones de conquista del emperador? Cada vez que nos damos cuenta de que no
somos mas que unossimples instrumentos para sacrificar tantas vidas y haciendas para la vanagloria del
japon, se nos rebela la conciencia. Creemos que la guerra es inicua, injusta: debemos abandonarla. No
debemos continuarr invadiendo territorios." Si estos pensamientos persistiesen en la mennte de dichos
oficiales, indudablemente perderian su entusiasmo, su eficiencia en el servicio: su obsesion les haria
indiferentes, pasivos, inutiles para laguerra. Pueden deponer su actitud, pueden cruzarse de brazos e
inclusive pueden desertar, y eso seria fatal para la nacion invasora. Pero si, porinclinacion natural,
encuentran entretenimiento, esparcimiento y alegria en violar mujeres, entonces el proporcionarseles es
una ayuda efectiva. Esdarles calor, entusiasmo y valor en la guerra de conquista.

Hay mayor traicion como el poner a disposicion de los enemigos al ser mas querido, a la mujer? Que
se apoderen de todas nuestros production nuestros recursos: de todo cuanto encuentran a su paso; pero,
por Dios, salvemosel honor de nuestras mujeres.

Voto por que el acusado sea condenado por el delito de traicion.

G.R. No. L-369 March 13, 1947
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
CARMELITO VICTORIA, defendant-appellant.
Luis Atienza Bijis for appellant.
Assistant Solicitor General Kapunan, Jr. and Solicitor Bautista for appellee.
PERFECTO, J.:
Sentenced to the supreme penalty of death and to pay a fine of twenty thousand pesos and costs,
Carmelito Victoria comes to us to seek for the reversal of the decision of the People's Court.

He is accused of treason in an information which reads as follows:

The undersigned Special Prosecutor accuses Carmelito Victoria alias Carlito Victoria, Carling
Victoria, Carlos Victoria of the crime of treason under article 114 of the Revised Penal Code
committed as follows:

That during the period compromised between March, 1942 to December, 1944, more
specifically on or about the dates hereinbelow mentioned, in the different places hereunder
stated, and within the jurisdiction of this Honorable Court, the said accussed not being a
foreigner but a Filipino citizen owing allegiance to the United States and the Commonwealth of
the Philippines, in violation of his said duty of allegiance, wilfully, unlawfully, feloniously and
treasonably did knowingly adhere to their enemy, the Empire of Japan and the Imperial
Japanese Forces in the Philippines, with which the United States and the Commonwealth of the
Philippines were then at war, giving to said enemy aid and/or comfort, in the following
manner, to wit:

1. That on or about October 6, 1944, the accused, a member of the Intelligence Unit attached to
the Kempei Tai in Lucena, Tayabas, for the purpose of giving and with the intent to give said
enemy aid and comfort, joined an armed enemy patrol composed of about eight spies and a
Japanese soldier, which went to the house of Federico Unson in the barrio of Malaking Labak
Bocohan, Lucena, Tayabas, and accused Federico Unson of hiding guerrillas; that said patrol
was arresting said Federico Unson when some guerrillas appeared and killed one of the spies
and the patrol left; that said accused directed several men in the patrol in picking up the dead
spy and carrying him away; and that, in the afternoon of the same day, the same party of spies,
including the accused and eight members of the Japanese Military Police, went again to the
house of Federico Unson and did feloniously, willfully, unlawfully and treasonably arrest him,
together with Isaias Perez and Ruben Godoy, who happened to be at the house; that with their
hands bound, the three were tortured and then taken along by said patrol after setting fire on
the house of Federico Unson and that of Isaias Perez were found lying nearby with numerous
bayonet wounds; and that Ruben Godoy was taken to the Japanese garrison in Lucena, Tayabas,
and there killed.

2. That on or about December 21, 1944, the accused, accompanied by other Japanese spies,
Pedro Raviera, Jose Bondoc, Jacinto Pineda, Alberto Calawit, Bernardo Santiago, and others
who were all armed, for the purpose of giving and with the intent to give said enemy aid and
comfort, went to the house of Jose Unson, in Lucena, Tayabas, and arrested said Jose Unson and
brought him to the Japanese garrison on the charge that he had a short wave radio; that he was
furnishing radio information to the guerrillas and at the same time supporting them; that said
Unson was released on the same day, but on the next day he was again arrested and brought to
the Japanese garrison at Lucena, Tayabas; that said Jose Unson never returned.

3. That on or about February 10, 1945, the accused, in company with Jacinto Pineda, Leonardo
Coronel, Jose Bondoc, Abelardo Calawit, and Pedro Raviera, all members of the Intelligence
Unit of the Kempei Tai, were all armed, for the purpose of giving and with the intent to give
 said enemy aid and comfort, went to the house of Felixberto Romulo in San Pablo, Laguna,
placed him under arrest as a guerrilla suspect, and turned him over to the Japanese Military
Police who on that occasion were concealing themselves near the house of Romulo; and that,
since the arrest of said Romulo, nothing was heard of him.

4. That on or about December 21, 1944, at about 5 o'clock in the morning, the accused,
accompanied by two Japanese Military Police and two undercover operatives, for the purpose of
giving and with the intent to give said enemy aid and comfort, went to the house of
Hermogenes Calauag in Lucena, Tayabas, and apprehended said Hermogenes Calauag; that said
two Japanese Military Police and the accused conducted a search of the house and afterwards
brought Calauag to the Japanese garrison where he was subjected to inhuman torture on the
charge being pro-American and adviser of the Hunters ROTC Guerrillas.

5. That on or about March 9, 1944, at about 5 o'clock in the morning, the accused then acting
as an informer of the Japanese Kempei Tai, with intent to aid said enemy, did wilfully,
feloniously and treasonably cause the Japanese Military police to arrest and apprehended
Antonio San Agustin, a guerrilla officer, who was thereupon brought to Fort Santiago and there
torture and unlawfully detained up to September 20, 1944.

6. That on or about June, 1944, the accused accompanied by an armed group of undercover
operatives, for the purpose of giving and with intent to give said enemy aid and comfort, went
to the house of Melecio Labalan, Sr., and arrested and brought him to the Japanese garrison in
Lucena, Tayabas, where he was tortured on the charge of being a guerrilla.

7. That on or about February, 1945, the accused, a member of the Ganap, a pro-Japanese party,
wilfully, unlawfully, feloniously and treasonably joined the Makapili organization designed to
support the Imperial Japanese Forces in levying war against their enemies; that he took military
training from the Japanese and bore arms and joined the enemy forces as a Makapili soldier,
taking orders from the Japanese; that he participated in the raid and burning of the barrio of
Bautista, San Pablo, Laguna, upon orders of the Japanese; that he carried ammunitions and
foodstuffs for the Japanese Army from Bautista to the mountains of Susong Dalaga and Mt.
Malipuo, Laguna; that he performed sentry duty for the Japanese Army in Mount Malipuo,
where he was stationed with Japanese and other Makapili soldiers.

That the commission of the above-mentioned acts was attended by the aggravating
circumstances of treachery, the aid of armed persons to insure or afford impunity, and
deliberately augmenting the crimes by causing other wrongs not necessary in the commission
thereof.

Upon the testimonies of Mrs. Federico Unson, Jr. and Dolores Kalakasan, the lower court found that the
mutilated corpses of Federico Unson, Jr. and of Isaias Perez were found rotting in the vicinity of the
houses of the victims which were burned and looted by the same hands, on the day following the arrest,
effected by the accused in the company of a Japanese soldier and several spies of the enemy. The body
of Unson which was still tied to a tree showed that it had been disemboweled by several bayonet thrusts
and the corpse of Perez appeared ankleless and mutilated. Ruben Godoy, who was arrested at the same
times as Unson and Perez, since he was imprisoned in the garrison of the Japanese kempei, was never
heard of. Appellant's testimony to the fact that, although admitting his presence in the previous
morning raid, he did not come along with party that conducted the afternoon raid in which the actual
arrest of Unson, Perez and Godoy took place, was not given by the lower court enough weight to prevail
over that of the prosecuting witnesses, thus finding the accused guilty on the first count.

With respect to the second count, the lower court states that the accused admitted having taken part in
the raid of the house of Jose Unson and in the latter's arrest, but claims that he tried to save Unson, only
the latter was accepted by the lower court, in view of appellant's behaviour as recalled by witnesses
Mercedes Unson, Alejandro Unson, and Eugenio Ramon Unson. The last that was seen of Jose Unson,
was his skull as exhumed in a school yard in Lukban, several months after the arrest, the exhumation
having been effected with the aid of those who claimed to have seen how his life was ended. These facts
relate to the second count.

With respect to the third count, upon the declarations of Elena Romulo and Enriqueta Alviar, the lower
court found that on February 10, 1945, in the company of Japanese kempei and Filipino spies, the
accused raided the house of Felixberto Romulo in San Pablo and arrested him as alleged guerrilla. The
accused simply alleged in his defense the alibi that on said date he was in Gagalagin, Manila.

In regard to the fourth count, the accused alleged that he was merely asked by the Japanese kempei to
accompany them in the raid on Hermogenes Caluag's house and admitted that he was present
throughout the investigation and torture of Caluag who, according to the accused himself, was tied
suspended in the air for fully twenty minutes, but the lower court did not accept this defense,
considering it rather as corroborative of the facts alleged in the information and proved by the
witnesses for the prosecution.

Appellant's participation in the arrest of Melecio Labalan, alleged in the sixth count, according to the
lower court, has been abundantly established, disbelieving appellant's feigned ignorance of the arrest
because appellant himself testified that he promised to see what he could do about Labalan and
accepted three chickens from the latter's wife which he gave to the interpreter at the kempei office.

Counts five and seven were not proven.

Upon the record, it appears that the lower court's conclusions on the overt acts alleged in counts one,
two, three, four, and six of the information are fully supported by the evidence. A perusal of appellant's
brief alone, in taken. It is highly significant that, although appellant's brief compromises one hundred
thirty printed pages, it failed completely to point out any specific error in the conclusions of fact of the
lower court, counsel limiting himself into raising legal questions, maintaining that the penalty imposed
is unjustified, and that the acts committed by the accused do not constitute treason but ordinary crimes
against the victimized persons.

Admitting that appellant's conduct during the Japanese occupation has not been impeccable, counsel
wants us to consider what the accused did in behalf of the guerrillas in mitigation of his criminal
responsibility, and that the purpose of a penalty, not being to satisfy public vengeance, but to attain the
correction of the guilty person, such purpose will not be attained with appellant's death as decreed by
the lower court.

Appellant tried to show in his testimony that he was not a spy; that he joined the Japanese in their raids
only because he was forced to do so; that in the instances he had to go to the Japanese garrison he did it
either in obedience to a summon of his friend Captain Yuki or to intercede in behalf of some prisoners;
that he remained in Lucena heeding the advice of Sor Constancia, who appealed to him not to go to the
mountains so he may continue helping those who were detained by the Japanese; and that in October
1943, he was arrested by the Japanese for aiding the guerrillas, and that he was released only after he
had been made to promise to indicate who the guerrillas were but, notwithstanding the involuntary
promise exacted from him, he did not cause the arrest of any guerrilla. Even if we accept this testimony
of appellant it cannot overthrow the clear, positive, and straightforward declarations of the witnesses,
for the prosecution. Appellant's claim that he, too, was a guerrilla, had helped the resistance movement,
and in fact, succeeded in interceding for some Filipino prisoners, does not relieve him from criminal
responsibility for the acts he had committed as alleged in the counts in the information which were
declared proven by the People's Court.

The performance of righteous action, no matter how meritorious they may be, is not, as correctly stated
by the Solicitor General, a justifying, exempting, or mitigating circumstance in the commission of
wrongs, and although appellant had saved the lives of a thousand and one persons, if he had caused the
killing of a single human being to give aid and comfort to the enemy, he is, nonetheless, a traitor. It was
already said that: "For whosoever shall keep the whole law, and yet offend in one point, he is guilty of
all" (James 2:10).

We do not find any merit in appellant's allegations that the acts committed by him are not punishable
as treason and that the People's Court who tried him had no jurisdiction, they being merely upshots of
the wrong theory of suspended allegiance and sovereignty.

Although this Court is unanimous in finding appellant guilty of treason as found by the lower court,
there is disagreement as to the penalty that should be imposed, because, while nine of the ten members
taking part in the decision of this case voted for the affirmance of the death penalty imposed by the
lower court, the writer of this opinion takes the position that the penalty the accused deserves is that
of reclusion perpetua, the medium penalty provided by law.

The Solicitor General recommends the imposition of the supreme penalty of death in view of the
presence of the aggravating circumstances alleged in the information as follows:

That the commission of the above-mentioned acts was attended by the aggravating
circumstances of treachery, the aid of armed persons to insure or afford impunity, and
deliberately augmenting the crimes by causing other wrongs not necessary in the commission
thereof.

The majority are of the opinion that these circumstances should be considered as aggravating, while the
undersigned maintains that in appellant's case, the circumstances in question are essential elements of
the treason he has committed. The crime is of such a nature that it may be committed by one single act,
by a series of acts, or by several series thereof, not only in a single time, but in different times, it being a
continuous crimes as was held by this Court in Guinto vs. Veluz (77 Phil., 801), so much so that there
are some accused of treason for just one count and there are others for several counts, their number not
changing the nature of the offense committed.

For all the foregoing, there being no unanimity of all the members of this Court in the imposition of the
death penalty, the People's Court's decision is modified, and appellant is sentenced to reclusion
perpetua and to pay a fine of P15,000 and costs.

Moran, C.J., Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ., concur.

Separate Opinions

FERIA, J., concurring:

I concur with the majority (except Mr. Justice Perfecto) that find the appellant guilty of the crime of
treason as alleged in the information, that is, with two aggravating circumstances. Among the atrocities
committed by the appellant and companions stand, in bold relief, those testified to by Mrs. Federico
Unson, Jr., and Dolores Calacasan and related in the same decision of this Court, to the effect that
Federico Unson, Jr., was crucified against and tied to a tree, and then disemboweled with bayonet
thrusts; and that Isaias Perez's body was mutilated with his ankles severed from the trunk and thrown
around the place where the crime was committed. And I dissent from the dissenting vote of the writer
of the decision, Mr. Justice Perfecto, which prevented the imposition by this Court of the death penalty
imposed upon the appellant by the lower court.
The killing of the victim was unquestionably attended by treachery, that is, by means, method or forms
in the execution thereof which tend directly to insure its execution without risk to the offender arising
from the defense which the offended party might make, and by a deliberate augment of the wrong done
by the offense by causing other wrongs not necessary for its commission. But the writer of the opinion
says:

The majority are of the opinion that these circumstances should be considered as aggravating,
while the undersigned maintains that in appellant's case, the circumstances in question are
essential elements of the treason he has committed. The crime is of such a nature that it may be
committed by one single act, by a series of acts, or by several series thereof, not only in a single
time, but in different times, it being a continuous crime as was held by this Court in Guinto vs.
Veluz (77 Phil., 801), so much so that there are some accused of treason for just one count and
there are others for several counts, their number not changing the nature of the offense
committed.

The reason or ground on which the dissenter bases his conclusion that the aggravating circumstances
above specified cannot be taken into consideration in the present case, is clearly wrong. Said
aggravating circumstances have nothing to do with the integral elements of the crime of treason as
charged and committed by the appellant. The fact that the crime of treason may be committed by a
single overt act or a series of overt acts, committed at one and the same time or at different times, does
not, by any means, make those circumstances essential elements of the offense committed by the
appellant. Said circumstances were not even inherent in or included by the law in defining the crime of
treason. The words "treason" as defined and penalized in the Revised Penal Code is completely different
and independent from "treachery" as an aggravating circumstance provided for in the same Code.

The crime of treason is committed by a citizen, not by merely adhering to the enemy and giving the
latter aid and comfort in abstract, but by committing one or more overt acts which constitute aid and
comfort to the enemy to which the traitor adheres; and evidently, the commission of such overt act as
the killing of the victim in aid of the enemy may be attended by the aggravating circumstances above
specified, for they were not necessary in order to give aid and comfort to the enemy. Of course, if one of
the aggravating circumstances provided by law is inherent or included in the overt acts charged as in
aid or comfort of the enemy, it cannot be taken into consideration as aggravating circumstance
attending the commission of that particular crime of treason.

PARAS, J., concurring and dissenting:

I concur partly in the result. The information and the evidence sufficiently make out at least a case of
murder, qualified by treachery. Appellant had committed other atrocities for which he could
correspondingly be convicted under the information and evidence of record. As spy, he may also be
tried in a military tribunal and, if found guilty, sentenced accordingly. While he might be guilty of a
violation of article 114 of the Revised Penal Code, I hold, in conformity with my dissenting opinion
in Laurel vs. Misa (77 Phil., 856), that said legal provisions was not in force at the time of the
commission of the crime. The penalty of reclusion perpetua is in accordance with the law, but the
provision regarding payment of a fine should be eliminated and the appellant sentenced to indemnify in
the proper amount the heirs of the victim.

G.R. No. L-477 June 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
APOLINARIO ADRIANO, defendant-appellant.
Remedios P. Nufable for appellant.
Assistant Solicitor General Kapunan, Jr., and Solicitor Lacson for appellee.
TUASON, J.:
This is an appeal from a judgment of conviction for treason by the People's Court sentencing the
accused to life imprisonment, P10,000 fine, and the costs.

The information charged:

That between January and April, 1945 or thereabout, during the occupation of the Philippines
by the Japanese Imperial Forces, in the Province of Nueva Ecija and in the mountains in the
Island of Luzon, Philippines, and within the jurisdiction of this Court, the above-named
accused, Apolinario Adriano, who is not a foreigner, but a Filipino citizen owing allegiance to
the United States and the Commonwealth of the Philippines, in violation of said allegiance, did
then and there willfully, criminally and treasonably adhere to the Military Forces of Japan in
the Philippines, against which the Philippines and the United States were then at war, giving
the said enemy aid and comfort in the manner as follows:

That as a member of the Makapili, a military organization established and designed to assist and
aid militarily the Japanese Imperial forces in the Philippines in the said enemy's war efforts and
operations against the United States and the Philippines, the herein accused bore arm and
joined and assisted the Japanese Military Forces and the Makapili Army in armed conflicts and
engagements against the United States armed forces and the Guerrillas of the Philippine
Commonwealth in the Municipalities of San Leonardo and Gapan, Province of Nueva Ecija, and
in the mountains of Luzon, Philippines, sometime between January and April, 1945. Contrary
to Law.

The prosecution did not introduce any evidence to substantiate any of the facts alleged except that of
defendant's having joined the Makapili organization. What the People's Court found is that the accused
participated with Japanese soldiers in certain raids and in confiscation of personal property. The court
below, however, said these acts had not been established by the testimony of two witnesses, and so
regarded them merely as evidence of adherence to the enemy. But the court did find established under
the two-witness rule, so we infer, "that the accused and other Makapilis had their headquarters in the
enemy garrison at Gapan, Nueva Ecija; that the accused was in Makapili military uniform; that he was
armed with rifle; and that he drilled with other Makapilis under a Japanese instructor; . . . that during
the same period, the accused in Makapili military uniform and with a rifle, performed duties as sentry
at the Japanese garrison and Makapili headquarters in Gapan, Nueva Ecija;" "that upon the liberation of
Gapan, Nueva Ecija, by the American forces, the accused and other Makapilis retreated to the
mountains with the enemy;" and that "the accused, rifle in hand, later surrendered to the Americans."

Even the findings of the court recited above in quotations are not borne out by the proof of two
witnesses. No two of the prosecution witnesses testified to a single one of the various acts of treason
imputed by them to the appellant. Those who gave evidence that the accused took part in raids and
seizure of personal property, and performed sentry duties and military drills, referred to acts allegedly
committed on different dates without any two witnesses coinciding in any one specified deed. There is
only one item on which the witnesses agree: it is that the defendant was a Makapili and was seen by
them in Makapili uniform carrying arms. Yet, again, on this point it cannot be said that one witness is
corroborated by another if corroboration means that two witnesses have seen the accused doing at least
one particular thing, it a routine military chore, or just walking or eating.

We take it that the mere fact of having joined a Makapili organization is evidence of both adherence to
the enemy and giving him aid and comfort. Unless forced upon one against his will, membership in the
Makapili organization imports treasonable intent, considering the purposes for which the organization
was created, which, according to the evidence, were "to accomplish the fulfillment of the obligations
assumed by the Philippines in the Pact of Alliance with the Empire of Japan;" "to shed blood and
sacrifice the lives of our people in order to eradicate Anglo-Saxon influence in East Asia;" "to collaborate
unreservedly and unstintedly with the Imperial Japanese Army and Navy in the Philippines;" and "to
fight the common enemies." Adherence, unlike overt acts, need not be proved by the oaths of two
witnesses. Criminal intent and knowledge may be gather from the testimony of one witness, or from the
nature of the act itself, or from the circumstances surrounding the act. (Cramer vs. U.S., 65 Sup. Ct.,
918.)

At the same time, being a Makapili is in itself constitutive of an overt act. It is not necessary, except for
the purpose of increasing the punishment, that the defendant actually went to battle or committed
nefarious acts against his country or countrymen. The crime of treason was committed if he placed
himself at the enemy's call to fight side by side with him when the opportune time came even though an
opportunity never presented itself. Such membership by its very nature gave the enemy aid and
comfort. The enemy derived psychological comfort in the knowledge that he had on his side nationals
of the country with which his was at war. It furnished the enemy aid in that his cause was advanced,
his forces augmented, and his courage was enhanced by the knowledge that he could count on men
such as the accused and his kind who were ready to strike at their own people. The principal effect of it
was no difference from that of enlisting in the invader's army.

But membership as a Makapili, as an overt act, must be established by the deposition of two witnesses.
Does the evidence in the present case meet this statutory test? Is two-witness requirement fulfilled by
the testimony of one witness who saw the appellant in Makapili uniform bearing a gun one day,
another witness another day, and so forth?

The Philippine law on treason is of Anglo-American origin and so we have to look for guidance from
American sources on its meaning and scope. Judicial interpretation has been placed on the two-witness
principle by American courts, and authoritative text writers have commented on it. We cull from
American materials the following excerpts which appear to carry the stamp of authority.

Wharton's Criminal Evidence, Vol. 3, section 1396, p. 2282, says:

In England the original Statute of Edward, although requiring both witnesses to be to the same
overt act, was held to mean that there might be one witness to an overt act and another witness
to another overt act of the same species of treason; and, in one case it has been intimated that
the same construction might apply in this country. But, as Mr. Wigmore so succinctly observes:
"The opportunity of detecting the falsity of the testimony, by sequestering the two witnesses and
exposing their variance in details, is wholly destroyed by permitting them to speak to different
acts." The rule as adopted in this country by all the constitutional provisions, both state and
Federal, properly requires that two witnesses shall testify to the same overt act. This also is now
the rule in England.

More to the point is this statement from VII Wigmore on Evidence, 3d ed., section 2038, p. 271:

Each of the witnesses must testify to the whole of the overt act; or, if it is separable, there must
be two witnesses to each part of the overt act.

Learned Hand, J., in United States vs. Robinson (D.C.S.D., N.Y., 259 Fed., 685), expressed the same idea:
"It is necessary to produce two direct witnesses to the whole overt act. It may be possible to piece bits
together of the overt act; but, if so, each bit must have the support of two oaths; . . .." (Copied as
footnote in Wigmore on Evidence,ante.) And in the recent case of Cramer vs. United States (65 Sup. Ct.,
918), decide during the recent World War, the Federal Supreme Court lays down this doctrine: "The
very minimum function that an overt act must perform in a treason prosecution is that it shows
sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and
comfort to the enemy. Every act, movement, deed, and word of the defendant charged to constitute
treason must be supported by the testimony of two witnesses."

In the light of these decisions and opinions we have to set aside the judgment of the trial court. To the
possible objection that the reasoning by which we have reached this conclusion savors of sophism, we
have only to say that the authors of the constitutional provision of which our treason law is a copy
purposely made conviction for treason difficult, the rule "severely restrictive." This provision is so
exacting and so uncompromising in regard to the amount of evidence that where two or more
witnesses give oaths to an overt act and only one of them is believed by the court or jury, the defendant,
it has been said and held, is entitled to discharge, regardless of any moral conviction of the culprit's
guilt as gauged and tested by the ordinary and natural methods, with which we are familiar, of finding
the truth. Natural inferences, however strong or conclusive, flowing from other testimony of a most
trustworthy witness or from other sources are unavailing as a substitute for the needed corroboration
in the form of direct testimony of another eyewitness to the same overt act.

The United States Supreme Court saw the obstacles placed in the path of the prosecution by a literal
interpretation of the rule of two witnesses but said that the founders of the American government fully
realized the difficulties and went ahead not merely in spite but because of the objections.
(Cramer vs. United States, ante.) More, the rule, it is said, attracted the members of the Constitutional
Convention "as one of the few doctrines of Evidence entitled to be guaranteed against legislative
change." (Wigmore on Evidence, ante, section 2039, p. 272, citing Madison's Journal of the Federal
Convention, Scott's ed., II, 564, 566.) Mr. Justice Jackson, who delivered the majority opinion in the
celebrated Cramer case, said: "It is not difficult to find grounds upon which to quarrel with this
Constitutional provision. Perhaps the farmers placed rather more reliance on direct testimony than
modern researchers in psychology warrant. Or it may be considered that such a quantitative measure
of proof, such a mechanical calibration of evidence is a crude device at best or that its protection of
innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason
rule, whether wisely or not, is severely restrictive." It must be remembered, however, that the
Constitutional Convention was warned by James Wilson that "'Treason may sometimes be practiced in
such a manner, as to render proof extremely difficult as in a traitorous correspondence with an
enemy.' The provision was adopted not merely in spite of the difficulties it put in the way of prosecution
but because of them. And it was not by whim or by accident, but because one of the most venerated of
that venerated group considered that "prosecutions for treason were generally virulent.'"

Such is the clear meaning of the two-witness provision of the American Constitution. By extension, the
lawmakers who introduced that provision into the Philippine statute books must be understood to have
intended that the law should operate with the same inflexibility and rigidity as the American forefathers
meant.

The judgment is reversed and the appellant acquitted with costs charged de oficio.

Moran, C.J., Feria, Pablo, Perfecto, Bengzon, Briones, Hontiveros, and Padilla, JJ., concur.
Paras, J., concurs in the result.

Separate Opinions

HILADO, J., dissenting:

Being unable to bring myself agree with the majority upon the application of the two-witness rule
herein, I am constrained to dissent.

As I see it, being a member of the Makapili during the Japanese occupation of those areas of the
Philippines referred to in the information, was one single, continuous, and indivisible overt act of the
present accused whereby he gave aid and comfort to the Japanese invaders. That membership was one
and the same from the moment he entered the organization till he was captured. The fact that he was
seen on a certain day by one of the state witnesses being a member of the Makapili, and was seen by
another state witness but on a different day being a member of the same organization, does not mean
that his membership on the first day was different or independent from his membership on the other
day it was the selfsame membership all the way through. A contrary construction would entail the
consequence that the instant defendant, if we are to believe the allegations and proofs of the
prosecution, became or was a member of the Makapili as many times as there were days from the first
to the last.

T.E. Holland defined "acts" in jurisprudence as follows:

Jurisprudence is concerned only with outward acts. An "act" may therefore be defined . . . as "a
determination of will, producing an effect in the sensible world". The effect may be negative, in
which case the act is properly described as a "forbearance". The essential elements of such an
act are there, viz., an exercise of the will, an accompanying state of consciousness, a
manifestation of the will. (Webster's New International Dictionary, 2d ed., unabridged, p. 25.)

There can, therefore, be no question that being a member of the Makapili was an overt act of the
accused. And the fact that no two witnesses saw him being such a member on any single day or on the
selfsame occasion does not, in my humble opinion, work against the singleness of the act, nor does the
fact that no two witnesses have testified to that same overt act being done on the same day or occasion
argue against holding the two-witness rule having been complied with.

My view is that, the act being single, continuous and indivisible, at least two witnesses have testified
thereto notwithstanding the fact that one saw it on one day and the other on another day.
G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain
Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard
flourished, seem far away in the pages of history and romance. Nevertheless, the record before us tells a
tale of twentieth century piracy in the south seas, but stripped of all touches of chivalry or of
generosity, so as to present a horrible case of rapine and near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch
possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven men,
women, and children, likewise subjects of Holland. After a number of days of navigation, at about 7
o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in the Dutch
East Indies. There the boat was surrounded by six vintas manned by twenty-four Moros all armed. The
Moros first asked for food, but once on the Dutch boat, too for themselves all of the cargo, attacked
some of the men, and brutally violated two of the women by methods too horrible to the described. All
of the persons on the Dutch boat, with the exception of the two young women, were again placed on it
and holes were made in it, the idea that it would submerge, although as a matter of fact, these people,
after eleven days of hardship and privation, were succored violating them, the Moros finally arrived at
Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the
women, and Saraw. At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands.
There they were arrested and were charged in the Court of First Instance of Sulu with the crime of
piracy. A demurrer was interposed by counsel de officio for the Moros, based on the grounds that the
offense charged was not within the jurisdiction of the Court of First Instance, nor of any court of the
Philippine Islands, and that the facts did not constitute a public offense, under the laws in force in the
Philippine Islands. After the demurrer was overruled by the trial judge, trial was had, and a judgment
was rendered finding the two defendants guilty and sentencing each of them to life imprisonment
(cadena perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to
the offended parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in
the amount of 924 rupees, and to pay a one-half part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process
of elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is
robbery or forcible depredation on the high seas, without lawful authority and done animo furandi,
and in the spirit and intention of universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again done in
this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes
humani generis. Piracy is a crime not against any particular state but against all mankind. It may be
punished in the competent tribunal of any country where the offender may be found or into which he
may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against
all so may it be punished by all. Nor does it matter that the crime was committed within the
jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to
crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

The most serious question which is squarely presented to this court for decision for the first time is
whether or not the provisions of the Penal Code dealing with the crime of piracy are still in force.
Article 153 to 156 of the Penal Code reads as follows:

ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation
not at war with Spain, shall be punished with a penalty ranging from cadena
temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with Spain,
it shall be punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding
article shall suffer the penalty of cadena perpetua or death, and those who commit the crimes
referred to in the second paragraph of the same article, from cadena temporal to cadena
perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the physical

injuries specified in articles four hundred and fourteen and four hundred and fifteen
and in paragraphs one and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in

Chapter II, Title IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving
themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code, when
Spain is mentioned it shall be understood as including any part of the national territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who, according
to the Constitution of the Monarchy, has the status of a Spaniard shall be considered as such.

The general rules of public law recognized and acted on by the United States relating to the effect of a
transfer of territory from another State to the United States are well-known. The political law of the
former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the
Constitution, the laws of the United States, or the characteristics and institutions of the government,
remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to
secure good order and peace in the community, which are strictly of a municipal character, continue
until by direct action of the new government they are altered or repealed. (Chicago, Rock Islands, etc.,
R. Co. vs. McGlinn [1885], 114 U.S., 542.)

These principles of the public law were given specific application to the Philippines by the Instructions
of President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the
Army of Occupation in the Philippines, when he said:
 Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the conquered
territory, such as affect private rights of person and property, and provide for the punishment
of crime, are considered as continuing in force, so far as they are compatible with the new
order of things, until they are suspended or superseded by the occupying belligerent; and
practice they are not usually abrogated, but are allowed to remain in force, and to be
administered by the ordinary tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the present occasion. (Official
Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of
August 14, 1898.)

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to
include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution
of the Spanish Monarchy, would also make the provisions of the Code applicable not only to Spaniards
but to Filipinos.

The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law,
and he has never been disputed. The specific provisions of the Penal Code are similar in tenor to
statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so,
considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and
the Novisima Recopilacion.

The Constitution of the United States declares that the Congress shall have the power to define and
punish piracies and felonies committed on the high seas, and offenses against the law of nations. (U.S.
Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary ancillary
legislation, provided that whoever, on the high seas, commits the crime of piracy as defined by the law
of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.
(U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.) The framers of the
Constitution and the members of Congress were content to let a definition of piracy rest on its universal
conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are
not inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of
articles of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever
"Spain" is mentioned, it should be substituted by the words "United States" and wherever "Spaniards" are
mentioned, the word should be substituted by the expression "citizens of the United States and citizens
of the Philippine Islands." somewhat similar reasoning led this court in the case of United States vs.
Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Penal Code a limited
meaning, which would no longer comprehend all religious, military, and civil officers, but only public
officers in the Government of the Philippine Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the
Philippine Islands, or the subjects of another nation not at war with the United States, shall be
punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with the
United States, it shall be punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and
154, to be still in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154.
There are present at least two of the circumstances named in the last cited article as authorizing
either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against
chastity and (2) the abandonment of persons without apparent means of saving themselves. It is,
therefore, only necessary for us to determine as to whether the penalty of cadena perpetua or death
should be imposed. In this connection, the trial court, finding present the one aggravating circumstance
of nocturnity, and compensating the same by the one mitigating circumstance of lack of instruction
provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At
least three aggravating circumstances, that the wrong done in the commission of the crime was
deliberately augmented by causing other wrongs not necessary for its commission, that advantage was
taken of superior strength, and that means were employed which added ignominy to the natural effects
of the act, must also be taken into consideration in fixing the penalty. Considering, therefore, the
number and importance of the qualifying and aggravating circumstances here present, which cannot
be offset by the sole mitigating circumstance of lack of instruction, and the horrible nature of the crime
committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death
penalty upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not
unanimous with regard to the court, Mr. Justice Romualdez, registers his nonconformity. In accordance
with provisions of Act No. 2726, it results, therefore, that the judgment of the trial court as to the
defendant and appellant Saraw is affirmed, and is reversed as to the defendant and appellant Lol-lo,
who is found guilty of the crime of piracy and is sentenced therefor to be hung until dead, at such time
and place as shall be fixed by the judge of first instance of the Twenty-sixth Judicial District. The two
appellants together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly
and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the
costs of both instances. So ordered.

Araullo, C.J., Johnson, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ., concur.
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 Hernandez and 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. 1wph1.t

(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 overthrow of 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
overthrow by 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 below has
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 indoctrinated 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 overthrow of the democratic government as envisaged by the principles of
Communism. To this effect is the following comment of Viada:

CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que se
anunciara la subasta de consumes se echaran a la calle para conseguir aunque fuera preciso
acudir a la fuerza el reparto entre los vecinos ricos solamente, sera responsable de un delito de
conspiracion para la sedicion? El Tribunal Supreme ha resuelto la negative al casar cierta
sentencia de la Audiencia de Valencia, que entendio lo contrario: "Considerando que, con
areglo a lo que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o mas personas
se conciertan para la execution de un delito y resuelven cmeterlo; y no constando que existiera
ese concierto en cuanto a los hechos que se refieren en la tercera pregunta del veredicto, pues
en ella solo se habla de los actos de induccion que el procesado realizo, sin expresar el efecto
que la mismo produjo en el animo de las personas a quienes se dirigian, ni si estas aceptaron o
no lo que se las propuso, resulta evidence que faltan los clementos integrantes de la
conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I,
Codigo Penal, p. 152)

In view of all the above circumstances We find that there is no concrete evidence proving beyond
reasonable doubt that the appellant (Hernandez) actually participated in the rebellion or in any act of
conspiracy to commit or foster the cause of the rebellion. We are constrained, in view of these
circumstances, to absolve, as We hereby absolve, the appellant Amado V. Hernandez from the crime
charged, with a proportionate share of the costs de oficio.

APPEAL OF OTHER DEFENDANTS-APPELLANTS

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 1 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.

And when a Huk member, not content with his membership, does anything to promote the ends of the
rebellion like soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy,
unless he takes to the field and joins in the rebellion or uprising, in which latter case he commits
rebellion.

In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the
"Katipunan", the purpose of which was to overthrow the government by force. Each of the defendants
on various times solicited funds from the people of Mexico, Pampanga. The Court held that the
defendants were guilty of conspiracy and proposal to commit rebellion or insurrection and not of
rebellion or insurrection itself. Thus, the Court ruled that:

From the evidence adduced in this case we are of the opinion that the said defendants are
guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but rather of the
crime of conspiring to overthrow, put down, and destroy by force the Government of the
United States in the Philippine Islands, and therefore we find that said defendants, and each of
them, did, together with others, in the months of February and March, 1903, in the Province of
Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy by force the
Government of the United States in the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432,
434.)

JUAN J. CRUZ

The court found him to be a Communist with various aliases, a member of the Central Committee of the
CLO member of the Central Committee of the CPP and as such committed to the establishment of the
dictatorship of the proletariat To the same effect is the testimony of Guillermo Calayag.

There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He
should therefore be absolved of the charges contained in the information.

AMADO RACANDAY

The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the
CLO a communications center of the Communist Party, having been found in possession of letters from
Federico Maclang to Salome Cruz, and solicitor of contributions for the Huks.

Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the
Government Workers Union, receiving copies of the Titis. Calayag testified that he was a member of the
Central Committee of the Communist Party entrusted with the duty of receiving directives of the
Regional Committee of the Communist Party.
The letters found in his possession are dated February 14, 1950, before the Communist Party went
underground. We have been unable to find the evidence upon which the court bases its conclusion that
he received contributions for the Huks. With these circumstances in mind, We are not convinced
beyond reasonable doubt that as a Communist he took part in the conspiracy among the officials of the
Communist Party to take part and support the rebellion of the Huks.

We are, therefore, constrained to absolve him of the charges filed against him.

GENARO DE LA CRUZ

The court found him to be a Communist since 1945, an officer of an organized Communist branch in
Pasay City, a member of the Central Committee and Treasurer of the CLO. He admitted his membership
and his position as member of the executive committee and treasurer of the CLO these facts being
corroborated by the witness Guillermo Calayag.

His membership in the Communist Party dates as far back as the year 1945. As a communist, Genaro de
la Cruz received quotas and monetary contributions coming from the areas under his jurisdiction, and
one time he made a receipt from a member from Caloocan at the CLO headquarters at Azcarraga
signing the receipt as "Gonzalo" which is one of his aliases. He also distributed copies of the "Titis"
magazine. `

While his membership in the Communist Party plus his having received contributions for the party
indicate that he is an active member, it was not shown that the contributions that he received from
Communist Party members were received around the year 1950 when the Central Committee of the
Communist Party had already agreed to conspire and go underground and support the Huk rebellion.
Under these circumstances We cannot find him guilty of conspiracy to commit rebellion because of the
lack of evidence to prove his guilt beyond reasonable doubt.

JULIAN LUMANOG

The court found him to be an organizer of HMB among the mill workers, solicited contributions for the
HMB and Central Committee member of the CLO as per Testimony of Guillermo Calayag.

He admitted that he joined the Communist Party because he was made to believe that the Party is for the
welfare of the laborers. He also admitted being a member of the Central Committee of the CLO Calayag
testified that Lumanog organized the HMB units of the Communist Party in the Lumber Unions and
attended a Communist meeting held by Maclang.

Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one
Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the use
of the said unit.

Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that by
giving his contributions he actually participated in the conspiracy to overthrow the government and
should, therefore, be held liable for such conspiracy, and should be sentenced accordingly.

FERMIN RODILLAS

The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities
consisted in soliciting contributions, in cash and in kind, from city residents for the use of the HMB,
turning over said collections to the Party; that he has given asylum to a wanted Hukbalahap at his
house at Juan Luna St., Gagalangin, which house was used as Military post. The above findings of the
court are fully supported by the testimony of Domingo Clarin.
Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the
cause by soliciting contributions for it and had given shelter to the Huks. We feel that the court was
fully justified in finding him guilty, but We hold that he should be declared liable merely as a co-
conspirator in the crime of conspiracy to commit rebellion, and should be sentenced accordingly.

BAYANI ESPIRITU

This appellant was found by the court to be a Communist, he having admitted membership in the
Communist Party since 1945; that his duties as a Communist was to help in the office of the National
Finance Committee, assorting papers and written documents; that sometimes he accompanied the
purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a
member of the Communication Division of the CPP in Manila, in charge of distribution of letters or
communications; that he admits having written to Salome Cruz, courier of the Communist Party, when
he asked for his necessities, such as money and shoes, etc.

The facts found by the court are sufficiently supported by the communications and evidence submitted
by the prosecution. The exhibits show that he was in constant communication with the communists;
serving them as courier. His oath as a member of the Communist Party was submitted in court and in it
he admits obedience to all orders of the Party and to propagate the stability of the PKP.

Considering that the PKP was engaged in an actual uprising against the constituted Government and
that Bayani Espiritu was in constant communication with the Communist Party and served it as courier,
We believe that the court was fully justified in finding him guilty. However, We believe that not having
actually taken up arms in the uprising he may only be declared guilty of conspiracy to commit
rebellion.

TEOPISTA VALERIO

The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga,
under Casto Alejandrino, who later became her common-law husband; that her aliases are "Estrella"
and "Star"; that she was found in possession of various documents written to top Communists like
Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a son.

Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva Ecija,
later Chairman of the Finance Department, and then promoted to Finance Officer of the Central Luzon
Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the mountains to
Teopista Valerie, who was in turn also a courier.

Without considering the close relationship that she had with top Communist Casto Alejandrino, We are
satisfied that she herself was, aside from being a Huk courier, also a Huk, a member of the HMB from
1942 to 1951. As she was a Communist and at the same time a member of the HMB, and considering
that the HMB was engaged in an uprising to uproot the legitimate government, there cannot be any
question that she was in conspiracy with the other members of her Party against the constituted
government. We hold, therefore, that the evidence proves beyond reasonable doubt that she is guilty of
conspiracy to commit rebellion.

DEFENDANTS NOT INCLUDED IN DECISION

In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P.
Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been apprehended at
the time of the trial.
PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND
REPUBLIC ACT NO. 1700, DISTINGUISHED

In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking
aims against the Government for the purpose of removing from the allegiance to said Government or its
laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the
Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under Art.
138, Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against appellants is that
of rising up in arms in actual rebellion against the Government, they cannot be held guilty of inciting
the people to arms under Article 138, which is a different offense.

On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in
any organization or association committed to subvert the Government, cannot be applied to the
appellants because said Act was approved on June 20, 1957 and was not in force at the time of the
commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act
punishes participation or membership in an organization committed to overthrow the duly constituted
Government, a crime district from that of actual rebellion with which appellants are charged.

CONCLUSION

WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) 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. The defendants-
appellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and the
defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R. No. L-
6026) are hereby 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. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon and Makalintal, JJ., concur.
Padilla, Barrera and Regala, JJ., took no part.
G.R. No. 92163 June 5, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner
vs.
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR
STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY
ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION
DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police
District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON
OF JUAN PONCE ENRILE, respondents.

G.R. No. 92164 June 5, 1990

SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,

vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO
C. MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial
Court, Quezon City, Branch 103, respondents.

NARVASA, J.:

Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once
more takes center stage as the focus of a confrontation at law that would re-examine, if not the validity
of its doctrine, the limits of its applicability. To be sure, the intervening period saw a number of similar
cases 2 that took issue with the ruling-all with a marked lack of success-but none, it would Beem, where
season and circumstance had more effectively conspired to attract wide public attention and excite
impassioned debate, even among laymen; none, certainly, which has seen quite the kind and range of
arguments that are now brought to bear on the same question.

The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan
Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National
Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial
Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an
information signed and earlier that day filed by a panel of prosecutors composed of Senior State
Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor
Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio
Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed
during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile
was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none
having been recommended in the information and none fixed in the arrest warrant. The following
morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was
given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula
Torres.3

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas
corpus herein (which was followed by a supplemental petition filed on March 2, 1990), alleging that
he was deprived of his constitutional rights in being, or having been:

(a) held to answer for criminal offense which does not exist in the statute books;
 (b) charged with a criminal offense in an information for which no complaint was
initially filed or preliminary investigation was conducted, hence was denied due
process;

(c) denied his right to bail; and

(d) arrested and detained on the strength of a warrant issued without the judge who
issued it first having personally determined the existence of probable cause. 4

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March
6, 1990. 5 On March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in
this case and in G.R. No. 92164 7 Which had been contemporaneously but separately filed by two of
Senator Enrile's co-accused, the spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said
return urged that the petitioners' case does not fall within the Hernandez ruling because-and this is
putting it very simply-the information in Hernandezcharged murders and other common crimes
committed as a necessary means for the commission of rebellion, whereas the information against Sen.
Enrile et al. charged murder and frustrated murder committed on the occasion, but not in furtherance,
of rebellion. Stated otherwise, the Solicitor General would distinguish between the complex crime
("delito complejo") arising from an offense being a necessary means for committing another, which is
referred to in the second clause of Article 48, Revised Penal Code, and is the subject of
the Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act
constituting two or more grave or less grave offenses referred to in the first clause of the same
paragraph, with which Hernandez was not concerned and to which, therefore, it should not apply.

The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued
its Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty
conditioned upon their filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for
Senator Enrile) and P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was
issued without prejudice to a more extended resolution on the matter of the provisional liberty of the
petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four Members
of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the
Panlilios.

The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition,
G.R. No. 92163.

The parties' oral and written pleas presented the Court with the following options:

(a) abandon Hernandez and adopt the minority view expressed in the main dissent of
Justice Montemayor in said case that rebellion cannot absorb more serious crimes, and
that under Article 48 of the Revised Penal Code rebellion may properly be complexed
with common offenses, so-called; this option was suggested by the Solicitor General in
oral argument although it is not offered in his written pleadings;

(b) hold Hernandez applicable only to offenses committed in furtherance, or as a

necessary means for the commission, of rebellion, but not to acts committed in the
course of a rebellion which also constitute "common" crimes of grave or less grave
character;

(c) maintain Hernandez as applying to make rebellion absorb all other offenses
committed in its course, whether or not necessary to its commission or in furtherance
thereof.
On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2)
Members felt that the doctrine should be re-examined. 10-A In the view of the majority, the ruling
remains good law, its substantive and logical bases have withstood all subsequent challenges and no
new ones are presented here persuasive enough to warrant a complete reversal. This view is reinforced
by the fact that not too long ago, the incumbent President, exercising her powers under the 1986
Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former
regime which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art.
142-A) into the Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of
the crimes penalized in this Chapter (Chapter I of Title 3, which includes rebellion), acts which
constitute offenses upon which graver penalties are imposed by law are committed, the penalty for the
most serious offense in its maximum period shall be imposed upon the offender."' 11 In thus acting, the
President in effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law.
The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason
against so doing.

On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be,
limited in its application to offenses committed as a necessary means for the commission of rebellion
and that the ruling should not be interpreted as prohibiting the complexing of rebellion with other
common crimes committed on the occasion, but not in furtherance, thereof. While four Members of the
Court felt that the proponents' arguments were not entirely devoid of merit, the consensus was that they
were not sufficient to overcome what appears to be the real thrust of Hernandez to rule out the
complexing of rebellion with any other offense committed in its course under either of the aforecited
clauses of Article 48, as is made clear by the following excerpt from the majority opinion in that case:

There is one other reason-and a fundamental one at that-why Article 48 of our Penal
Code cannot be applied in the case at bar. If murder were not complexed with
rebellion, and the two crimes were punished separately (assuming that this could be
done), the following penalties would be imposable upon the movant, namely: (1) for
the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances present, but never
exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion
temporal in its maximum period to death, depending upon the modifying
circumstances present. in other words, in the absence of aggravating circumstances, the
extreme penalty could not be imposed upon him. However, under Article 48
said penalty would have to be meted out to him, even in the absence of a single
aggravating circumstance. Thus, said provision, if construed in conformity with the
theory of the prosecution, would be unfavorable to the movant.

Upon the other hand, said Article 48 was enacted for the purpose of favoring the
culprit, not of sentencing him to a penalty more severe than that which would be
proper if the several acts performed by him were punished separately. In the words of
Rodriguez Navarro:

La unificacion de penas en los casos de concurso de delitos a que hace

referencia este articulo (75 del Codigo de 1932), esta basado
francamente en el principio pro reo.' (II Doctrina Penal del Tribunal
Supremo de Espana, p. 2168.)

We are aware of the fact that this observation refers to Article 71 (later 75) of the
Spanish Penal Code (the counterpart of our Article 48), as amended in 1908 and then
in 1932, reading:
 Las disposiciones del articulo anterior no son aplicables en el caso de
que un solo hecho constituya dos o mas delitos, o cuando el uno de ellos
sea medio necesario para cometer el otro.

En estos casos solo se impondra la pena correspondiente al delito mas

grave en su grado maximo, hasta el limite que represents la suma de las
que pudieran imponerse, penando separadamente los delitos.

Cuando la pena asi computada exceda de este limite, se sancionaran los

delitos por separado. (Rodriguez Navarro, Doctrina Penal del Tribunal
Supremo, Vol. II, p. 2163)

and that our Article 48 does not contain the qualification inserted in said amendment,
restricting the imposition of the penalty for the graver offense in its maximum period to
the case when it does not exceed the sum total of the penalties imposable if the acts
charged were dealt with separately. The absence of said limitation in our Penal Code
does not, to our mind, affect substantially the spirit of said Article 48. Indeed, if one act
constitutes two or more offenses, there can be no reason to inflict a punishment graver
than that prescribed for each one of said offenses put together. In directing that the
penalty for the graver offense be, in such case, imposed in its maximum period, Article
48 could have had no other purpose than to prescribe a penalty lower than the
aggregate of the penalties for each offense, if imposed separately. The reason for this
benevolent spirit of article 48 is readily discernible. When two or more crimes are the
result of a single act, the offender is deemed less perverse than when he commits said
crimes thru separate and distinct acts. Instead of sentencing him for each crime
independently from the other, he must suffer the maximum of the penalty for the more
serious one, on the assumption that it is less grave than the sum total of the separate
penalties for each offense. 12

The rejection of both options shapes and determines the primary ruling of the Court, which is
that Hernandezremains binding doctrine operating to prohibit the complexing of rebellion with any
other offense committed on the occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion.

This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into,
much less adjudged. That is for the trial court to do at the proper time. The Court's ruling merely
provides a take-off point for the disposition of other questions relevant to the petitioner's complaints
about the denial of his rights and to the propriety of the recourse he has taken.

The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in
fact charge an offense. Disregarding the objectionable phrasing that would complex rebellion with
murder and multiple frustrated murder, that indictment is to be read as charging simple rebellion.
Thus, in Hernandez, the Court said:

In conclusion, we hold that, under the allegations of the amended information against
defendant-appellant Amado V. Hernandez, the murders, arsons and robberies described
therein are mere ingredients of the crime of rebellion allegedly committed by said
defendants, as means "necessary" (4) for the perpetration of said offense of rebellion;
that the crime charged in the aforementioned amended information is, therefore,
simple rebellion, not the complex crime of rebellion with multiple murder, arsons and
robberies; that the maximum penalty imposable under such charge cannot exceed
twelve (12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with
the policy of this court in dealing with accused persons amenable to a similar
punishment, said defendant may be allowed bail. 13
The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books,
while technically correct so far as the Court has ruled that rebellion may not be complexed with other
offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric.
Read in the context of Hernandez, the information does indeed charge the petitioner with a crime
defined and punished by the Revised Penal Code: simple rebellion.

Was the petitioner charged without a complaint having been initially filed and/or preliminary
investigation conducted? The record shows otherwise, that a complaint against petitioner for simple
rebellion was filed by the Director of the National Bureau of Investigation, and that on the strength of
said complaint a preliminary investigation was conducted by the respondent prosecutors, culminating
in the filing of the questioned information. 14There is nothing inherently irregular or contrary to law in
filing against a respondent an indictment for an offense different from what is charged in the initiatory
complaint, if warranted by the evidence developed during the preliminary investigation.

It is also contended that the respondent Judge issued the warrant for petitioner's arrest without
first personallydetermining the existence of probable cause by examining under oath or affirmation the
complainant and his witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has
already ruled, however, that it is not the unavoidable duty of the judge to make such a personal
examination, it being sufficient that he follows established procedure by personally evaluating the
report and the supporting documents submitted by the prosecutor.16Petitioner claims that the warrant
of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent
Judge, which hardly gave the latter sufficient time to personally go over the voluminous records of the
preliminary investigation. 17 Merely because said respondent had what some might consider only a
relatively brief period within which to comply with that duty, gives no reason to assume that he had
not, or could not have, so complied; nor does that single circumstance suffice to overcome the legal
presumption that official duty has been regularly performed.

Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation
of Hernandez as applicable to petitioner's case, and of the logical and necessary corollary that the
information against him should be considered as charging only the crime of simple rebellion, which is
bailable before conviction, that must now be accepted as a correct proposition. But the question
remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the
appropriate vehicle for asserting a right to bail or vindicating its denial?

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right
to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail
rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a
petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence
against him. Only after that remedy was denied by the trial court should the review jurisdiction of this
Court have been invoked, and even then, not without first applying to the Court of Appeals if
appropriate relief was also available there.

Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a
non-existent crime or, contrarily, theorizing on the same basis that it charges more than one offense,
would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious
recourse would have been a motion to quash brought in the criminal action before the respondent
Judge. 18

There thus seems to be no question that All the grounds upon which petitioner has founded the present
petition, whether these went into the substance of what is charged in the information or imputed error
or omission on the part of the prosecuting panel or of the respondent Judge in dealing with the charges
against him, were originally justiciable in the criminal case before said Judge and should have been
brought up there instead of directly to this Court.
There was and is no reason to assume that the resolution of any of these questions was beyond the
ability or competence of the respondent Judge-indeed such an assumption would be demeaning and
less than fair to our trial courts; none whatever to hold them to be of such complexity or transcendental
importance as to disqualify every court, except this Court, from deciding them; none, in short that
would justify by passing established judicial processes designed to orderly move litigation through the
hierarchy of our courts. Parenthentically, this is the reason behind the vote of four Members of the
Court against the grant of bail to petitioner: the view that the trial court should not thus be precipitately
ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter, denied an
opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant
of arrest fixing no bail. Immemorial practice sanctions simply following the prosecutor's
recommendation regarding bail, though it may be perceived as the better course for the judge motu
proprio to set a bail hearing where a capital offense is charged.19 It is, in any event, incumbent on the
accused as to whom no bail has been recommended or fixed to claim the right to a bail hearing and
thereby put to proof the strength or weakness of the evidence against him.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a
similar situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of
seeking recourse in the regular manner just outlined. The proliferation of such pleas has only
contributed to the delay that the petitioner may have hoped to avoid by coming directly to this Court.

Not only because popular interest seems focused on the outcome of the present petition, but also
because to wash the Court's hand off it on jurisdictional grounds would only compound the delay that it
has already gone through, the Court now decides the same on the merits. But in so doing, the Court
cannot express too strongly the view that said petition interdicted the ordered and orderly progression
of proceedings that should have started with the trial court and reached this Court only if the relief
appealed for was denied by the former and, in a proper case, by the Court of Appeals on review.

Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift
to, pleas like the present, that clearly short-circuit the judicial process and burden it with the resolution
of issues properly within the original competence of the lower courts. What has thus far been stated is
equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No. 92164) which is
virtually Identical to that of petitioner Enrile in factual milieu and is therefore determinable on the
same principles already set forth. Said spouses have uncontestedly pleaded 20 that warrants of arrest
issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941, that when they
appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into
custody and detained without bail on the strength of said warrants in violation-they claim-of their
constitutional rights.

It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany
quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that
present-day rebels are less impelled by love of country than by lust for power and have become no
better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in
the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless
killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often
perpetrated against innocent civilians as against the military, but by and large attributable to, or even
claimed by so-called rebels to be part of, an ongoing rebellion.

It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of
our capital City seem safe from such unsettling violence that is disruptive of the public peace and
stymies every effort at national economic recovery. There is an apparent need to restructure the law on
rebellion, either to raise the penalty therefor or to clearly define and delimit the other offenses to be
considered as absorbed thereby, so that it cannot be conveniently utilized as the umbrella for every sort
of illegal activity undertaken in its name. The Court has no power to effect such change, for it can only
interpret the law as it stands at any given time, and what is needed lies beyond interpretation.
Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is
properly within its province.

WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the
questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda
Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to bail,
before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely
provisional in character, the proceedings in both cases are ordered REMANDED to the respondent
Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for
any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No
pronouncement as to costs.

SO ORDERED.

Cruz, Gancayco and Regalado, JJ., concur.

Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163.

Cortes and Grio-Aquino, JJ., are on leave.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three
decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that,
ironically, have only served to strengthen its pronouncements.

I take exception to the view, however, that habeas corpus was not the proper remedy.

Had the Information filed below charged merely the simple crime of Rebellion, that proposition could
have been plausible. But that Information charged Rebellion complexed with Murder and Multiple
Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously
intended to make the penalty for the most serious offense in its maximum period imposable upon the
offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the
Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.

Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court
would not have brought about the speedy relief from unlawful restraint that petitioner was seeking.
During the pendency of said Motion before the lower Court, petitioner could have continued to
languish in detention. Besides, the Writ of Habeas Corpus may still issue even if another remedy, which
is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).

It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a
process issued by a Court.
The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be
deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus
is thus available.

The writ of habeas corpus is available to relieve persons from unlawful restraint. But
where the detention or confinement is the result of a process issued by the court or
judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It
may still be invoked though if the process, judgment or sentence proceeded from a
court or tribunal the jurisdiction of which may be assailed. Even if it had authority to
act at the outset, it is now the prevailing doctrine that a deprivation of constitutional
right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus
could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis
emphasis].

The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional
right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the
crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court
from taking cognizance of petitions brought before it raising urgent constitutional issues, any
procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil.
805), the writ of habeas corpus being the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. The scope and flexibility
of the writ-its capacity to reach all manner of illegal detention-its ability to cut through
barriers of form and procedural mazes-have always been emphasized and jealously
guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA
420) [emphasis supplied].

The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about
by the insistence of the prosecution to charge the crime of Rebellion complexed with other common
offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and
had granted provisional liberty to petitioner.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion
perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D.
No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further
explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to
its full force and effect as it existed before said amendatory decrees." Having been so repealed, this
Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a
"creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to
the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion
may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into
existence nor prescribe a penalty for its commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising from these cases, especially
on how the defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to
assert the right to bail. Under the special circumstances of this case, however, the petitioners had no
other recourse. They had to come to us.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956)
that there is no such crime in our statute books as rebellion complexed with murder, that murder
committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to
arms resulting in the destruction of life or property constitutes neither two or more offenses nor a
complex crime but one crime-rebellion pure and simple.

Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All
lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined
have been consistently rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby
installing the new crime of rebellion complexed with offenses like murder where graver penalties are
imposed by law. However, President Aquino using her then legislative powers expressly repealed PD
942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and
made it clear that the Hernandezdoctrine remains the controlling rule. The prosecution has not
explained why it insists on resurrecting an offense expressly wiped out by the President. The
prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree
which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the
picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be
complexed with murder, our declaration can not be made retroactive where the effect is to imprison a
person for a crime which did not exist until the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings
charged in the information were committed "on the occasion of, but not a necessary means for, the
commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion.
Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results
in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the
same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion
complexed with murder because the killing of civilians is not necessary for the success of a rebellion
and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission
of rebellion.

This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate
crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of
machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or
each bullet happens to result in the destruction of life and property. The same act cannot be punishable
by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of
soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact
that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the
massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all
used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for
each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the
Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel
attack on military facilities furthers the rebellion and is part of the rebellion.

The trial court was certainly aware of all the above considerations. I cannot understand why the trial
Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to
bail. The petitioner was compelled to come to us so he would not be arrested without bail for a
nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse,
it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme
Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong
to the prosecution service. A court should never play into the hands of the prosecution and blindly
comply with its erroneous manifestations. Faced with an information charging a manifestly non-
existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make
it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision
consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to
express his reservations in the body of his decision, order, or resolution. However, any judgment he
renders, any order he prescribes, and any processes he issues must follow the Supreme Court
precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this
particular case, it should have been the Solicitor General coming to this Court to question the lower
court's rejection of the application for a warrant of arrest without bail. It should have been the
Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed
from their arrest for a non-existent crime.

The principle bears repeating:

Respondent Court of Appeals really was devoid of any choice at all. It could not have
ruled in any other way on the legal question raised. This Tribunal having spoken, its
duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera
v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the
significance that attaches to a constitutional or statutory provision, an executive order,
a procedural norm or a municipal ordinance is committed to the judiciary. It thus
discharges a role no less crucial than that appertaining to the other two departments in
the maintenance of the rule of law. To assure stability in legal relations and avoid
confusion, it has to speak with one voice. It does so with finality, logically and rightly,
through the highest judicial organ, this Court. What it says then should be definitive
and authoritative, binding on those occupying the lower ranks in the judicial hierarchy.
They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v.
Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera
further emphasizes the point: Such a thought was reiterated in an opinion of Justice
J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not
be reminded that the Supreme Court, by tradition and in our system of judicial
administration, has the last word on what the law is; it is the final arbiter of any
justifiable controversy. There is only one Supreme Court from whose decisions all other
courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court
of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961.
(Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First
Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC,
125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In
the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed
with murder exists only in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened
intently to the oral arguments during the hearing and it was quite apparent that the constitutional
requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to
support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in
due time to the trial court.

The spouses Panlilio and one parent have been in the restaurant business for decades. Under the
records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-
conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels
ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join
weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church
services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be
rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a
rebellion.

The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the
petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of
their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable
cause must be shown.

In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in
the heinous bombing of innocent civilians because the man who planted the bomb had, sometime
earlier, appeared in a group photograph taken during a birthday party in the United States with the
Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case
of conspiracy sought to proved through the catering of food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty,

malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial, and also to
protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241;
citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a
statutory grant, and to withhold it would be to transgress constitutional due process.
(See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process
clause it is not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of
the guarantees of freedom and fair play which are birthrights of all who live in our
country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although there is no general
formula or fixed rule for the determination of probable cause since the same must be
decided in the light of the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the judge conducting the
examination, such a finding should not disregard the facts before the judge nor run
counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129
SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the
hope that some credible evidence might later turn up during trial for this would be a
 flagrant violation of a basic right which the courts are created to uphold. It bears
repeating that the judiciary lives up to its mission by vitalizing and not denigrating
constitutional rights. So it has been before. It should continue to be so. (id., pp. 461-
462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations
as charging simple rebellion. This case did not arise from innocent error. If an information charges
murder but its contents show only the ingredients of homicide, the Judge may rightly read it as
charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for
an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be
reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not
exist, those informations should be treated as null and void. New informations charging the correct
offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the
Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.

The Court is not, in any way, preventing the Government from using more effective weapons to
suppress rebellion. If the Government feels that the current situation calls for the imposition of more
severe penalties like death or the creation of new crimes like rebellion complexed with murder, the
remedy is with Congress, not the courts.

I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void
informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law,
could stand reexamination or clarification. I have in mind in particular matters such as the correct or
appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a
matter which relates to the legal concept of rebellion in our legal system. If one examines the actual
terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this
Article specifies both the overt acts and the criminal purpose which, when put together, would
constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by
rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for
the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to
said government or its laws the territory of the Republic of the Philippines or any part thereof, or any
body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or
partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion
or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric
of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property
or committing serious violence, exacting contributions or diverting public funds from the lawful
purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are
they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or
insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or
employees?Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the
one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code
and, on the other hand, differing optional modes of seeking to carry out the political or social objective
of the rebellion or insurrection.

The difficulty that is at once raised by any effort to examine once more even the above threshold
questions is that the results of such re-examination may well be that acts which under
the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete
offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted
under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2
thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in
the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity
principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but
rather bear upon the lives of people with the specific form given them by judicial decisions interpreting
their norms. Judicial decisions construing statutory norms give specific shape and content to such
norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts
and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus,
while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the
law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial
doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here,
36 years) and most specially not where the statute construed is criminal in nature and the new doctrine
is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974];
People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]).
Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has
constitutional implications. The prevailing rule in the United States is that a judicial decision that
retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is
vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due
process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US
188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339
[1989]).

It is urged by the Solicitor General that the non-retroactivity principle does not present any real
problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the
Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article
48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can
reasonably be so simply and sharply characterized. And assuming the Hernandez could be so
characterized, subsequent cases refer to the Hernandez doctrine in terms which do not distinguish
clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil.
90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question
would be whether a man of ordinary intelligence would have necessarily read or understood
the Hernandezdoctrine as referring exclusively to Article 48, second clause. Put in slightly different
terms, the important question would be whether the new doctrine here proposed by the Government
could fairly have been derived by a man of average intelligence (or counsel of average competence in
the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the
Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost
be to compel a negative answer, especially in view of the conclusions reached by the Court and its
several Members today.

Finally, there appears to be no question that the new doctrine that the Government would have us
discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more
onerous for the respondent accused than the simple application of the Hernandez doctrine that
murders which have been committed on the occasion of and in furtherance of the crime of rebellion
must be deemed absorbed in the offense of simple rebellion.

I agree therefore that the information in this case must be viewed as charging only the crime of simple
rebellion.
FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956
ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs.
Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of
said doctrine so as to make it conformable with accepted and well-settled principles of criminal law
and jurisprudence.

To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the
rule that all common crimes committed on the occasion, or in furtherance of, or in connection with,
rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in
the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of
rebellion with any other offense committed on the occasion thereof, either as a means necessary to its
commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during
the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since
then have far-reaching effects on the all-embracing applicability of the doctrine considering the
emergence of alternative modes of seizing the powers of the duly constituted Government not
contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the
lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the
Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant
case, should have further considered that distinction between acts or offenses which
are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that
are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of
the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense
perpetrated as a necessary means of committing another, which is an element of the latter, the resulting
interlocking crimes should be considered as only one simple offense and must be deemed outside the
operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of
Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from
what is merely necessary in the commission of an offense, resulting thus in the rule that common
crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are
absorbed or included in the latter as elements thereof.

The relevance of the distinction is significant, more particularly, if applied to contemporaneous events
happening in our country today. Theoretically, a crime which is indispensable in the commission of
another must necessarily be an element of the latter; but a crime that is merely necessary but not
indispensable in the commission of another is not an element of the latter, and if and when actually
committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48)
of the Revised Penal Code. With that distinction, common crimes committed against Government forces
and property in the course of rebellion are properly considered indispensable overt acts of rebellion and
are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed
against the civilian population in the course or on the occasion of rebellion and in furtherance thereof,
may be necessary but not indispensable in committing the latter, and may, therefore, not be considered
as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed
confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and
would be those resulting from the bombing of military camps and installations, as these acts are
indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent
civilian to instill fear or create chaos among the people, although done in the furtherance of the
rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but
not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted
government by staging surprise attacks or occupying centers of powers, of which this Court should take
judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and
insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly
constituted government, it falls within the contemplation of rebellion under the Revised Penal Code,
but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent
and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional
definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as
applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed
successfully without its perpetrators resorting to the commission of other serious crimes such as
murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its
execution. In extreme cases where murder, arson, robbery, and other common crimes are committed
on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is
indispensable in the commission of the coup d'etat should be painstakingly considered as the Court
should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the
vote of the majority on the broad application of the Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the
remand of the case to the respondent judge for further proceedings to fix the amount of bail to be
posted by the petitioner.

I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing
bail since we have construed the indictment herein as charging simple rebellion, an offense which is
bailable. Consequently,habeas corpus is the proper remedy available to petitioner as an accused who
had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by
the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the
responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if
complete relief is to be accorded to petitioner in the instant proceedings.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused
before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and
Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for
his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail,
it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5
(1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having
admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter,
the rules require that "the proceedings together with the bond" shall forthwith be certified to the
respondent trial court (Section 14, Rule 102).

Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional
release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail
bond for his provisional release in the case (simple rebellion) pending before the respondent judge,
without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance
before the trial court to abide its order or judgment in the said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it
has firmly settled in the tomes of our jurisprudence as correct doctrine.

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which
implies "resort to arms, requisition of property and services, collection of taxes and contributions,
restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and
unhappiness that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary
means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with
any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion
includes murder, among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts
complained of as constituting rebellion have been embodied in the information, mention therein of
murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully
described. 4

At any rate, the government need only amend the information by a clerical correction, since an
amendment will not alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I
take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty"
upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional
liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful
purpose to have the trial court hear the incident again when we ourselves have been satisfied that the
petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515
"remains binding doctrine operating to prohibit the complexing of rebellion with any other offense
committed on the occasion thereof, either as a means necessary to its commission or as an unintended
effect of an activity that constitutes rebellion."

I dissent, however, from the majority opinion insofar as it holds that the information in question, while
charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as
charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect.
In the Hernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been
convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his
plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now
celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery
does not exist. In the present cases, on the other hand, the Court is confronted with an original case,
i.e., where an information has been recently filed in the trial court and the petitioners have not even
pleaded thereto.

Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of
whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other
hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but
Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind
them to the legal proposition that the crime of rebellion complexed with murder, and multiple
frustrated murder does not exist.

And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid
down the Hernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted
in hearing, an information charging the petitioners with rebellion complexed with murder an multiple
frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be
allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The
warrants of arrest issued pursuant thereto are as null and void as the information on which they are
anchored. And, since the entire question of the information's validity is before the Court in these habeas
corpus cases, I venture to say that the information is fatally defective,even under procedural law,
because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by
labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file
an entirely new and properinformation, for this entire exercise to merit the serious consideration of the
courts.

ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the
information for rebellion complexed with murder and multiple frustrated murder in Criminal Case
Nos. 90-10941, RTC of Quezon City, DISMISSED.

Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three
decades, remains good law and, thus, should remain undisturbed, despite periodic challenges to it that,
ironically, have only served to strengthen its pronouncements.

I take exception to the view, however, that habeas corpus was not the proper remedy.

Had the Information filed below charged merely the simple crime of Rebellion, that proposition could
have been plausible. But that Information charged Rebellion complexed with Murder and Multiple
Frustrated Murder, a crime which does not exist in our statute books. The charge was obviously
intended to make the penalty for the most serious offense in its maximum period imposable upon the
offender pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended in the
Information nor was any prescribed in the Warrant of Arrest issued by the Trial Court.

Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court
would not have brought about the speedy relief from unlawful restraint that petitioner was seeking.
During the pendency of said Motion before the lower Court, petitioner could have continued to
languish in detention. Besides, the Writ of Habeas Corpus may still issue even if another remedy, which
is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a
process issued by a Court.

The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be
deemed to have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus
is thus available.

The writ of habeas corpus is available to relieve persons from unlawful restraint. But
where the detention or confinement is the result of a process issued by the court or
judge or by virtue of a judgment or sentence, the writ ordinarily cannot be availed of. It
may still be invoked though if the process, judgment or sentence proceeded from a
court or tribunal the jurisdiction of which may be assailed. Even if it had authority to
act at the outset, it is now the prevailing doctrine that a deprivation of constitutional
right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus
could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis
emphasis].

The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional
right to bail inasmuch as rebellion, under the present state of the law, is a bailable offense and the
crime for which petitioner stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court
from taking cognizance of petitions brought before it raising urgent constitutional issues, any
procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil.
805), the writ of habeas corpus being the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. The scope and flexibility
of the writ-its capacity to reach all manner of illegal detention-its ability to cut through
barriers of form and procedural mazes-have always been emphasized and jealously
guarded by courts and lawmakers (Gumabon v. Director of Bureau of Prisons, 37 SCRA
420) [emphasis supplied].

The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about
by the insistence of the prosecution to charge the crime of Rebellion complexed with other common
offenses notwithstanding the fact that this Court had not yet ruled on the validity of that charge and
had granted provisional liberty to petitioner.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion
perpetua), the remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D.
No. 942, were repealed, for being "repressive," by EO No. 187 on 5 June 1987. EO 187 further
explicitly provided that Article 134 (and others enumerated) of the Revised Penal Code was "restored to
its full force and effect as it existed before said amendatory decrees." Having been so repealed, this
Court is bereft of power to legislate into existence, under the guise of re-examining a settled doctrine, a
"creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to
the lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion
may not be complexed with murder, the Court emphasizes that it cannot legislate a new-crime into
existence nor prescribe a penalty for its commission. That function is exclusively for Congress.

I write this separate opinion to make clear how I view certain issues arising from these cases, especially
on how the defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to
assert the right to bail. Under the special circumstances of this case, however, the petitioners had no
other recourse. They had to come to us.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956)
that there is no such crime in our statute books as rebellion complexed with murder, that murder
committed in connection with a rebellion is absorbed by the crime of rebellion, and that a resort to
arms resulting in the destruction of life or property constitutes neither two or more offenses nor a
complex crime but one crime-rebellion pure and simple.

Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All
lawyers and even law students are aware of the doctrine. Attempts to have the doctrine re-examined
have been consistently rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby
installing the new crime of rebellion complexed with offenses like murder where graver penalties are
imposed by law. However, President Aquino using her then legislative powers expressly repealed PD
942 by issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with murder and
made it clear that the Hernandezdoctrine remains the controlling rule. The prosecution has not
explained why it insists on resurrecting an offense expressly wiped out by the President. The
prosecution, in effect, questions the action of the President in repealing a repressive decree, a decree
which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the
picture. Decisions of this Court form part of our legal system. Even if we declare that rebellion may be
complexed with murder, our declaration can not be made retroactive where the effect is to imprison a
person for a crime which did not exist until the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings
charged in the information were committed "on the occasion of, but not a necessary means for, the
commission of rebellion" result in outlandish consequences and ignore the basic nature of rebellion.
Thus, under the prosecution theory a bomb dropped on PTV-4 which kills government troopers results
in simple rebellion because the act is a necessary means to make the rebellion succeed. However, if the
same bomb also kills some civilians in the neighborhood, the dropping of the bomb becomes rebellion
complexed with murder because the killing of civilians is not necessary for the success of a rebellion
and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the commission
of rebellion.

This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate
crime of rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of
machine gun bullets be broken up into a hundred or thousands of separate offenses, if each bomb or
each bullet happens to result in the destruction of life and property. The same act cannot be punishable
by separate penalties depending on what strikes the fancy of prosecutors-punishment for the killing of
soldiers or retribution for the deaths of civilians. The prosecution also loses sight of the regrettable fact
that in total war and in rebellion the killing of civilians, the laying waste of civilian economies, the
massacre of innocent people, the blowing up of passenger airplanes, and other acts of terrorism are all
used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels for
each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the
Revised Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel
attack on military facilities furthers the rebellion and is part of the rebellion.

The trial court was certainly aware of all the above considerations. I cannot understand why the trial
Judge issued the warrant of arrest which categorically states therein that the accused was not entitled to
bail. The petitioner was compelled to come to us so he would not be arrested without bail for a
nonexistent crime. The trial court forgot to apply an established doctrine of the Supreme Court. Worse,
it issued a warrant which reversed 34 years of established procedure based on a well-known Supreme
Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong
to the prosecution service. A court should never play into the hands of the prosecution and blindly
comply with its erroneous manifestations. Faced with an information charging a manifestly non-
existent crime, the duty of a trial court is to throw it out. Or, at the very least and where possible, make
it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision
consistently followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to
express his reservations in the body of his decision, order, or resolution. However, any judgment he
renders, any order he prescribes, and any processes he issues must follow the Supreme Court
precedent. A trial court has no jurisdiction to reverse or ignore precedents of the Supreme Court. In this
particular case, it should have been the Solicitor General coming to this Court to question the lower
court's rejection of the application for a warrant of arrest without bail. It should have been the
Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed
from their arrest for a non-existent crime.

The principle bears repeating:

Respondent Court of Appeals really was devoid of any choice at all. It could not have
ruled in any other way on the legal question raised. This Tribunal having spoken, its
duty was to obey. It is as simple as that. There is relevance to this excerpt from Barrera
v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) 'The delicate task of ascertaining the
significance that attaches to a constitutional or statutory provision, an executive order,
a procedural norm or a municipal ordinance is committed to the judiciary. It thus
discharges a role no less crucial than that appertaining to the other two departments in
the maintenance of the rule of law. To assure stability in legal relations and avoid
confusion, it has to speak with one voice. It does so with finality, logically and rightly,
through the highest judicial organ, this Court. What it says then should be definitive
and authoritative, binding on those occupying the lower ranks in the judicial hierarchy.
They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in People v.
Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera
further emphasizes the point: Such a thought was reiterated in an opinion of Justice
J.B.L. Reyes and further emphasized in these words: 'Judge Gaudencio Cloribel need not
be reminded that the Supreme Court, by tradition and in our system of judicial
administration, has the last word on what the law is; it is the final arbiter of any
justifiable controversy. There is only one Supreme Court from whose decisions all other
courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court
of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961.
(Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert v. Court of First
 Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine Services, Inc. v. NLRC,
125 SCRA 577 [1983])

I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In
the case of the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed
with murder exists only in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened
intently to the oral arguments during the hearing and it was quite apparent that the constitutional
requirement of probable cause was not satisfied. In fact, in answer to my query for any other proofs to
support the issuance of a warrant of arrest, the answer was that the evidence would be submitted in
due time to the trial court.

The spouses Panlilio and one parent have been in the restaurant business for decades. Under the
records of these petitions, any restaurant owner or hotel manager who serves food to rebels is a co-
conspirator in the rebellion. The absurdity of this proposition is apparent if we bear in mind that rebels
ride in buses and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity, join
weddings, fiestas, and other parties, play basketball with barrio youths, attend masses and church
services and otherwise mix with people in various gatherings. Even if the hosts recognize them to be
rebels and fail to shoo them away, it does not necessarily follow that the former are co-conspirators in a
rebellion.

The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the
petitioners served food to rebels at the Enrile household and a hotel supervisor asked two or three of
their waiters, without reason, to go on a vacation. Clearly, a much, much stronger showing of probable
cause must be shown.

In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in
the heinous bombing of innocent civilians because the man who planted the bomb had, sometime
earlier, appeared in a group photograph taken during a birthday party in the United States with the
Senator and other guests. It was a case of conspiracy proved through a group picture. Here, it is a case
of conspiracy sought to proved through the catering of food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty,

malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial, and also to
protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA 241;
citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a
statutory grant, and to withhold it would be to transgress constitutional due process.
(See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process
clause it is not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a part of
the guarantees of freedom and fair play which are birthrights of all who live in our
country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable cause exists to
form a sufficient belief as to the guilt of the accused. Although there is no general
formula or fixed rule for the determination of probable cause since the same must be
decided in the light of the conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the judge conducting the
examination, such a finding should not disregard the facts before the judge nor run
 counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129
SCRA 391). The judge or fiscal, therefore, should not go on with the prosecution in the
hope that some credible evidence might later turn up during trial for this would be a
flagrant violation of a basic right which the courts are created to uphold. It bears
repeating that the judiciary lives up to its mission by vitalizing and not denigrating
constitutional rights. So it has been before. It should continue to be so. (id., pp. 461-
462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations
as charging simple rebellion. This case did not arise from innocent error. If an information charges
murder but its contents show only the ingredients of homicide, the Judge may rightly read it as
charging homicide. In these cases, however, there is a deliberate attempt to charge the petitioners for
an offense which this Court has ruled as non-existent. The prosecution wanted Hernandez to be
reversed. Since the prosecution has filed informations for a crime which, under our rulings, does not
exist, those informations should be treated as null and void. New informations charging the correct
offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the
Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.

The Court is not, in any way, preventing the Government from using more effective weapons to
suppress rebellion. If the Government feels that the current situation calls for the imposition of more
severe penalties like death or the creation of new crimes like rebellion complexed with murder, the
remedy is with Congress, not the courts.

I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void
informations for a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law,
could stand reexamination or clarification. I have in mind in particular matters such as the correct or
appropriate relationship between Article 134 and Article 135 of the Revised Penal Code. This is a
matter which relates to the legal concept of rebellion in our legal system. If one examines the actual
terms of Article 134 (entitled: "Rebellion or Insurrection-How Committed"), it would appear that this
Article specifies both the overt acts and the criminal purpose which, when put together, would
constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is committed by
rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for
the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to
said government or its laws the territory of the Republic of the Philippines or any part thereof, or any
body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or
partially, of their powers or prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion
or Insurrection.") sets out a listing of acts or particular measures which appear to fall under the rubric
of rebellion or insurrection: "engaging in war against the forces of the Government, destroying property
or committing serious violence, exacting contributions or diverting public funds from the lawful
purpose for which they have been appropriated." Are these modalities of rebellion generally? Or are
they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion or
insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or
employees?Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the
one hand, the indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code
and, on the other hand, differing optional modes of seeking to carry out the political or social objective
of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even the above threshold
questions is that the results of such re-examination may well be that acts which under
the Hernandez doctrine are absorbed into rebellion, may be characterized as separate or discrete
offenses which, as a matter of law, can either be prosecuted separately from rebellion or prosecuted
under the provisions of Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2
thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a conclusion in
the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity
principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but
rather bear upon the lives of people with the specific form given them by judicial decisions interpreting
their norms. Judicial decisions construing statutory norms give specific shape and content to such
norms. In time, the statutory norms become encrusted with the glosses placed upon them by the courts
and the glosses become integral with the norms (Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus,
while in legal theory, judicial interpretation of a statute becomes part of the law as of the date that the
law was originally enacted, I believe this theory is not to be applied rigorously where a new judicial
doctrine is announced, in particular one overruling a previous existing doctrine of long standing (here,
36 years) and most specially not where the statute construed is criminal in nature and the new doctrine
is more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974];
People v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]).
Moreover, the non-retroactivity rule whether in respect of legislative acts or judicial decisions has
constitutional implications. The prevailing rule in the United States is that a judicial decision that
retroactively renders an act criminal or enhances the severity of the penalty prescribed for an offense, is
vulnerable to constitutional challenge based upon the rule against ex post facto laws and the due
process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US
188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339
[1989]).

It is urged by the Solicitor General that the non-retroactivity principle does not present any real
problem for the reason that the Hernandez doctrine was based upon Article 48, second clause, of the
Revised Penal Code and not upon the first clause thereof, while it is precisely the first clause of Article
48 that the Government here invokes. It is, however, open to serious doubt whether Hernandez can
reasonably be so simply and sharply characterized. And assuming the Hernandez could be so
characterized, subsequent cases refer to the Hernandez doctrine in terms which do not distinguish
clearly between the first clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil.
90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical question
would be whether a man of ordinary intelligence would have necessarily read or understood
the Hernandezdoctrine as referring exclusively to Article 48, second clause. Put in slightly different
terms, the important question would be whether the new doctrine here proposed by the Government
could fairly have been derived by a man of average intelligence (or counsel of average competence in
the law) from an examination of Articles 134 and 135 of the Revised Penal Code as interpreted by the
Court in the Hernandez and subsequent cases. To formulate the question ill these terms would almost
be to compel a negative answer, especially in view of the conclusions reached by the Court and its
several Members today.

Finally, there appears to be no question that the new doctrine that the Government would have us
discover for the first time since the promulgation of the Revised Penal Code in 1932, would be more
onerous for the respondent accused than the simple application of the Hernandez doctrine that
murders which have been committed on the occasion of and in furtherance of the crime of rebellion
must be deemed absorbed in the offense of simple rebellion.

I agree therefore that the information in this case must be viewed as charging only the crime of simple
rebellion.
FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956
ruling of the Court. The numerous challenges to the doctrine enunciated in the case of People vs.
Hernandez, 99 Phil. 515 (1956) should at once demonstrate the need to redefine the applicability of
said doctrine so as to make it conformable with accepted and well-settled principles of criminal law
and jurisprudence.

To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the
rule that all common crimes committed on the occasion, or in furtherance of, or in connection with,
rebellion are absorbed by the latter. To that extent, I cannot go along with the view of the majority in
the instant case that 'Hernandez remains binding doctrine operating to prohibit the complexing of
rebellion with any other offense committed on the occasion thereof, either as a means necessary to its
commission or as an unintended effect of an activity that constitutes rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during
the communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since
then have far-reaching effects on the all-embracing applicability of the doctrine considering the
emergence of alternative modes of seizing the powers of the duly constituted Government not
contemplated in Articles 134 and 135 of the Revised Penal Code and their consequent effects on the
lives of our people. The doctrine was good law then, but I believe that there is a certain aspect of the
Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant
case, should have further considered that distinction between acts or offenses which
are indispensable in the commission of rebellion, on the one hand, and those acts or offenses that
are merely necessary but not indispensable in the commission of rebellion, on the other. The majority of
the Court is correct in adopting, albeit impliedly, the view in Hernandez case that when an offense
perpetrated as a necessary means of committing another, which is an element of the latter, the resulting
interlocking crimes should be considered as only one simple offense and must be deemed outside the
operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case of
Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from
what is merely necessary in the commission of an offense, resulting thus in the rule that common
crimes like murder, arson, robbery, etc. committed in the course or on the occasion of rebellion are
absorbed or included in the latter as elements thereof.

The relevance of the distinction is significant, more particularly, if applied to contemporaneous events
happening in our country today. Theoretically, a crime which is indispensable in the commission of
another must necessarily be an element of the latter; but a crime that is merely necessary but not
indispensable in the commission of another is not an element of the latter, and if and when actually
committed, brings the interlocking crime within the operation of the complex crime provision (Art. 48)
of the Revised Penal Code. With that distinction, common crimes committed against Government forces
and property in the course of rebellion are properly considered indispensable overt acts of rebellion and
are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed
against the civilian population in the course or on the occasion of rebellion and in furtherance thereof,
may be necessary but not indispensable in committing the latter, and may, therefore, not be considered
as elements of the said crime of rebellion. To illustrate, the deaths occurring during armed
confrontation or clashes between government forces and the rebels are absorbed in the rebellion, and
would be those resulting from the bombing of military camps and installations, as these acts are
indispensable in carrying out the rebellion. But deliberately shooting down an unarmed innocent
civilian to instill fear or create chaos among the people, although done in the furtherance of the
rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely necessary, but
not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.

The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted
government by staging surprise attacks or occupying centers of powers, of which this Court should take
judicial notice, has introduced a new dimension to the interpretation of the provisions on rebellion and
insurrection in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly
constituted government, it falls within the contemplation of rebellion under the Revised Penal Code,
but, strictly construed, a coup d'etat per se is a class by itself. The manner of its execution and the extent
and magnitude of its effects on the lives of the people distinguish a coup d'etat from the traditional
definition and modes of commission attached by the Revised Penal Code to the crime of rebellion as
applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be executed
successfully without its perpetrators resorting to the commission of other serious crimes such as
murder, arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its
execution. In extreme cases where murder, arson, robbery, and other common crimes are committed
on the occasion of a coup d' etat, the distinction referred to above on what is necessary and what is
indispensable in the commission of the coup d'etat should be painstakingly considered as the Court
should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the
vote of the majority on the broad application of the Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the
remand of the case to the respondent judge for further proceedings to fix the amount of bail to be
posted by the petitioner.

I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing
bail since we have construed the indictment herein as charging simple rebellion, an offense which is
bailable. Consequently,habeas corpus is the proper remedy available to petitioner as an accused who
had been charged with simple rebellion, a bailable offense but who had been denied his right to bail by
the respondent judge in violation of petitioner's constitutional right to bail. In view thereof, the
responsibility of fixing the amount of bail and approval thereof when filed, devolves upon us, if
complete relief is to be accorded to petitioner in the instant proceedings.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused
before the Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and
Section 3, Rule 114). Petitioner is, before Us, on a petition for habeas corpus praying, among others, for
his provisional release on bail. Since the offense charged (construed as simple rebellion) admits of bail,
it is incumbent upon us m the exercise of our jurisdiction over the petition for habeas corpus (Section 5
(1), Article VIII, Constitution; Section 2, Rule 102), to grant petitioner his right to bail and having
admitted him to bail, to fix the amount thereof in such sums as the court deems reasonable. Thereafter,
the rules require that "the proceedings together with the bond" shall forthwith be certified to the
respondent trial court (Section 14, Rule 102).

Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional
release pursuant to our resolution dated March 6, 1990 should now be deemed and admitted as his bail
bond for his provisional release in the case (simple rebellion) pending before the respondent judge,
without necessity of a remand for further proceedings, conditioned for his (petitioner's) appearance
before the trial court to abide its order or judgment in the said case.
SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it
has firmly settled in the tomes of our jurisprudence as correct doctrine.

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which
implies "resort to arms, requisition of property and services, collection of taxes and contributions,
restraint of liberty, damage to property, physical injuries and loss of life, and the hunger, illness and
unhappiness that war leaves in its wake. ..." 3whether committed in furtherance, of as a necessary
means for the commission, or in the course, of rebellion. To say that rebellion may be complexed with
any other offense, in this case murder, is to play into a contradiction in terms because exactly, rebellion
includes murder, among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts
complained of as constituting rebellion have been embodied in the information, mention therein of
murder as a complexing offense is a surplusage, because in any case, the crime of rebellion is left fully
described. 4

At any rate, the government need only amend the information by a clerical correction, since an
amendment will not alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I
take it that when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty"
upon the filing of a bond of P100,000.00, we granted him bail. The fact that we gave him "provisional
liberty" is in my view, of no moment, because bail means provisional liberty. It will serve no useful
purpose to have the trial court hear the incident again when we ourselves have been satisfied that the
petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515
"remains binding doctrine operating to prohibit the complexing of rebellion with any other offense
committed on the occasion thereof, either as a means necessary to its commission or as an unintended
effect of an activity that constitutes rebellion."

I dissent, however, from the majority opinion insofar as it holds that the information in question, while
charging the complex crime of rebellion with murder and multiple frustrated murder, "is to be read as
charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect.
In the Hernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been
convicted by the trial court of the complex crime of rebellion with murder, arson and robbery, and his
plea to be released on bail before the Supreme Court, pending appeal, gave birth to the now
celebrated Hernandez doctrine that the crime of rebellion complexed with murder, arson and robbery
does not exist. In the present cases, on the other hand, the Court is confronted with an original case,
i.e., where an information has been recently filed in the trial court and the petitioners have not even
pleaded thereto.

Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of
whether rebellion can be complexed with murder, arson, robbery, etc. In the present cases, on the other
hand, the prosecution and the lower court, not only had the Hernandez doctrine (as case law), but
Executive Order No. 187 of President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind
them to the legal proposition that the crime of rebellion complexed with murder, and multiple
frustrated murder does not exist.

And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid
down the Hernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted
in hearing, an information charging the petitioners with rebellion complexed with murder an multiple
frustrated murder. That information is clearly a nullity and plainly void ab initio. Its head should not be
allowed to surface. As a nullity in substantive law, it charges nothing; it has given rise to nothing. The
warrants of arrest issued pursuant thereto are as null and void as the information on which they are
anchored. And, since the entire question of the information's validity is before the Court in these habeas
corpus cases, I venture to say that the information is fatally defective,even under procedural law,
because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by
labelling or "baptizing" it differently from what it announces itself to be. The prosecution must file
an entirely new and properinformation, for this entire exercise to merit the serious consideration of the
courts.

ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the
information for rebellion complexed with murder and multiple frustrated murder in Criminal Case
Nos. 90-10941, RTC of Quezon City, DISMISSED.

Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs.