People vs. Moreno

An order from a superior is not a justifying circumstance under Article 11(6) of the Revised Penal Code when the order is for an unlawful purpose, such as killing a person without trial. The defense of uncontrollable fear under Article 12(6) requires a threat of such serious character and imminence as to create an uncontrollable fear of an equal or greater injury, which was not established where the defendant merely claimed he was told he had to comply or come along with the Japanese officers.

The defendant-appellant Miguel M. Moreno was, at the outbreak of the war, a prisoner serving sentence in the San Ramon Penal Colony Farm in Zamboanga City. During the Japanese occupation, he befriended and gained the confidence of the Japanese naval authorities, was released from prison, and was appointed Captain of a semi-military organization known as Kaigun Jeutay, composed of Filipinos and sponsored by the Japanese navy. On October 23, 1944, he was appointed by the Japanese naval authorities as section commander of the San Ramon Penal Colony with plenary powers of supervision and control over the colony and its environs.

Miguel M. Moreno was a prisoner at the San Ramon Penal Colony Farm in Zamboanga City at the outbreak of the war. During the Japanese occupation, he gained the confidence of the Japanese naval authorities, was released from prison, and was appointed Captain of the Kaigun Jeutay, a semi-military organization sponsored by the Japanese navy. On October 23, 1944, the Japanese naval authorities appointed him section commander of the San Ramon Penal Colony with plenary powers of supervision and control over the colony and its environs.

On November 23, 1944, a group of Moreno's soldiers went to the house of Paciano de los Santos and took away his two single young daughters. The next day, when Paciano went to San Ramon Penal Colony, he was confined in a cell by order of Moreno. On the night of December 1, 1944, Moreno gathered all the prison officials and employees of the colony in a meeting at the house of P.D. Dellosa, the Assistant Superintendent. At that gathering, Moreno arrogantly announced that he was not afraid to cut anybody's head, ordered all present to witness the execution of Paciano de los Santos the following day, and instructed Gregorio Magalit, a prisoner employee, to prepare the grave and issue a formal memorandum to that effect, a photostatic copy of which was presented as Exhibit D at trial.

In the morning of December 2, 1944, Paciano de los Santos was taken to the Fishery Division of the colony with both hands tied at the back. Moreno ordered the victim to kneel with his head bent forward beside the grave already prepared, and with a Japanese sabre held by both hands, hacked off Paciano's head, then immediately kicked the prostrate body into the grave. These facts were established beyond doubt by the prosecution witnesses and were substantially admitted by Moreno in his testimony, in which he stated: "When I arrived at the place the deceased Paciano de los Santos was already in the place where I was to execute him, and was taken there by four Japanese and several guards of San Ramon, and on the way they have instructed me how should I kill him, I did kill him in the form and manner testified to by the witnesses for the prosecution."

Moreno's sole defense was that he acted in obedience to an order from Japanese naval officers, specifically a letter from Commander Tanigawa signed by Major Sasaki, which he claimed he could no longer locate. His testimony was internally contradictory: he first said he ordered the officials and employees to witness the execution so that they would be present when he received orders to kill Paciano, but then said he asked the Japanese officers to be present so they would see he acted against his will, to which Captain Susuki replied they could not be present because they had to return to Zamboanga that same day. Gregorio Magalit testified he never received or saw the alleged written order from Major Sasaki. The trial court found Moreno guilty of murder with the aggravating circumstances of premeditation and cruelty, without mitigating circumstances, and sentenced him to death.

• Two-Day Preparation Period: The attorney de oficio contended that the lower court erred in trying the defendant on the same day he was arraigned and pleaded not guilty, without granting him the two days to prepare for trial provided by Section 7, Rule 114 of the Rules of Court.
• Lack of Preliminary Investigation: The attorney contended that the lower court erred in trying and convicting the accused without a preliminary investigation by the municipal judge or Fiscal of Zamboanga City.
• Failure to Compel Witnesses: The attorney contended that the lower court erred in not compelling by subpoena the attendance of witnesses in behalf of the defendant, and in finding, despite this failure, that the defendant's testimony was not corroborated by any witness.
• Penalty and Aggravating Circumstances: The attorney contended that the lower court erred in finding the accused guilty of murder with two aggravating circumstances and imposing the death penalty.
• Ineffective Counsel: In a memorandum submitted after oral argument, the appellant's attorney suggested that the counsel de oficio in the lower court, Atty. Timoteo de los Santos, was a relative of the deceased, which allegedly affected the conduct of the defense.

• Waiver of Rights: The appellee maintained that the defendant waived his right to the two-day preparation period by submitting to trial without objection, and expressly waived his right to preliminary investigation in a written motion filed with the court.
• Subpoenas Issued: The appellee pointed out that subpoenas were in fact issued and served upon the defense witnesses Nicanor Punsalan, Timoteo Almonte, and Gregorio Magalit, and that the failure to present them as witnesses was the defense's own choice.
• Defense Unsupported: The appellee argued that the defense of obedience to superior orders was unsupported by evidence, contradicted by the prosecution witnesses and by Gregorio Magalit, and was incredible and contradictory on its face.

• Two-Day Preparation Period: Whether the trial court erred in trying the defendant on the same day he was arraigned, without granting him two days to prepare for trial.
• Preliminary Investigation: Whether the trial court erred in trying and convicting the accused without a preliminary investigation.
• Compulsory Process: Whether the trial court erred in not compelling by subpoena the attendance of defense witnesses.
• Obedience to Superior Orders: Whether the defendant was exempt from criminal liability for killing Paciano de los Santos under Article 11(6) of the Revised Penal Code, for acting in obedience to an order issued by a superior for some lawful purpose.
• Irresistible Force and Uncontrollable Fear: Whether the defendant was exempt from criminal liability under Article 12(5) and (6) of the Revised Penal Code for acting under the compulsion of an irresistible force or the impulse of an uncontrollable fear of an equal or greater injury.

• Two-Day Preparation Period: No. The right to two days to prepare for trial under Section 7, Rule 114 may be waived expressly or impliedly, and the defendant waived it by submitting to trial without objection on the same day he was arraigned.
• Preliminary Investigation: No. The defendant expressly waived his right to preliminary investigation in a written motion filed with the court, and the issue of whether the warrant of arrest was issued without probable cause cannot be raised for the first time on appeal after conviction.
• Compulsory Process: No. Subpoenas were in fact issued and served upon the defense witnesses, and the presumption is that they appeared in compliance; their non-presentation was the defense's own choice.
• Obedience to Superior Orders: No. The alleged order was not for a lawful purpose because the deceased was killed without trial, and Commander Sasaki had no authority to issue such an order; the defense under Article 11(6) therefore fails.
• Irresistible Force and Uncontrollable Fear: No. There was no compulsion of an irresistible force, and the alleged threat was not of such serious character and imminence as to create an uncontrollable fear of an equal or greater injury under Article 12(5) and (6).

• Two-Day Preparation Period: Section 7, Rule 114 entitles a defendant after arraignment to at least two days to prepare for trial, except when the case is on appeal from the justice of the peace. However, this right may be waived expressly or impliedly by not asking for time to prepare. The defendant waived the right by submitting to trial without objection. The case of People vs. Valte (43 Phil., 907) does not support the defense because in that case the defendant demanded the two-day period, whereas here the defendant did not. Moreover, the defendant had in fact been given time to prepare, as his counsel had conferred with him and requested subpoenas before trial, and the trial was adjourned and continued on subsequent days. Any error was not reversible because it did not impair the substantial rights of the defendant.

• Preliminary Investigation: Sections 1 and 7, Rule 108 use the words "preliminary investigation," but the investigation mentioned therein is not the preliminary investigation proper in which the defendant has the right to present evidence; it is defined by Section 1 as "a previous inquiry or examination made before the arrest of the defendant." Whether the warrant of arrest was issued without probable cause has nothing to do with the right to preliminary investigation and cannot be raised for the first time on appeal. The preliminary investigation proper, to which the defendant is entitled as part of due process where the statute provides for it, is established by Section 11 of Rule 108 and consists of the right to be informed of the complaint or information, of the substance of the testimony and evidence against him, and to testify or present witnesses or evidence in his favor. The defendant expressly waived this right in his motion of July 30, 1945.

• Compulsory Process: The defense witnesses Nicanor Punsalan, Timoteo Almonte, and Gregorio Magalit were served with subpoena and subpoena duces tecum on August 6. The presumption is that they appeared in compliance with the subpoena, there being nothing in the record to show the contrary. If they were not presented as witnesses for the defense, it was because their testimonies were not favorable to the defendant, as evidenced by Magalit, who was used by the prosecution as a rebuttal witness and testified against the accused.

• Obedience to Superior Orders: The defendant admitted having killed Paciano de los Santos in the form and manner testified to by the prosecution witnesses. His only defense was that he acted in obedience to an order from Japanese officers, but this was unsupported by any evidence. His testimony was incredible and contradictory: he claimed he ordered the officials and employees to witness the execution so they would be present when he received orders, but also claimed he asked the Japanese officers to be present so they would see he acted against his will, yet Captain Susuki said they could not be present because they had to return to Zamboanga. Even assuming such an order was given, it would not exempt the defendant under Article 11(6), because the order was not for a lawful purpose — the deceased was killed without trial, and Commander Sasaki had no authority to issue such an order. The Court cited United States vs. Garcia (5 Phil., 58), which held that it is not a defense to homicide that it was committed under an illegal order of an officer of the United States Army.

• Irresistible Force and Uncontrollable Fear: The defense under Article 12(5) and (6) fails because there was no compulsion of an irresistible force that compelled the defendant to kill the victim against his will, nor was there a threat of such serious character and imminence as to create an uncontrollable fear of an equal or greater injury. The only alleged threat was Captain Susuki's statement that the defendant had to comply with the order or come along with them, which is not the kind of threat contemplated by the provision, especially since the captain also said they had to return to Zamboanga that same day.

• Obedience to Superior Orders (Article 11(6), Revised Penal Code) — A person is not criminally liable when he acts in obedience to an order issued by a superior for some lawful purpose. The Court applied this doctrine by requiring that the order be for a lawful purpose; an order to kill a person without trial is unlawful, and the superior had no authority to issue it. Thus, the defense fails even if the order was actually given.

• Irresistible Force (Article 12(5), Revised Penal Code) — A person is exempt from criminal liability when he acts under the compulsion of an irresistible force. The Court found no such compulsion existed because the defendant was not physically compelled to kill the victim against his will.

• Uncontrollable Fear (Article 12(6), Revised Penal Code) — A person is exempt from criminal liability when he acts under the impulse of an uncontrollable fear of an equal or greater injury. The Court held that the alleged threat — that the defendant had to comply with the order or come along with the Japanese officers — was not of such serious character and imminence as to create an uncontrollable fear of an equal or greater injury.

• Waiver of Statutory Rights — Statutory rights, such as the right to two days to prepare for trial under Section 7, Rule 114, and the right to preliminary investigation, may be waived expressly or impliedly. The Court applied this doctrine to find that the defendant waived both rights by his conduct.

• "But assuming that such an order was really given by Major Sasaki, it could not exempt the defendant from criminal liability, either under subsection 6, article 11, or subsections 5 and 6, article 12, of the Revised Penal Code." — This passage states the Court's conclusion that even assuming the defense's factual premise, the legal defenses fail, articulating the ratio decidendi on the applicability of justifying and exempting circumstances.

• "Not under subsection 6 of article 11, because, in killing the deceased, the defendant has not acted in obedience to an order issued by a superior for some lawful purpose. The alleged order was not for lawful purpose, because the deceased was to be killed without any previous trial or hearing, and Commander Sasaki has no authority to give or issue such an order." — This passage defines the scope of the justifying circumstance of obedience to superior orders, requiring that the order be for a lawful purpose.

• "Because it is plain that there was no compulsion of an irresistible force that compelled the defendant to kill the victim against his will; nor was there any threat of such a serious character and imminence as to create in the mind of the defendant an uncontrollable fear that an equal or greater evil or injury would be inflicted upon him if he did not comply with the alleged order to kill the deceased." — This passage articulates the standard for the exempting circumstances of irresistible force and uncontrollable fear, requiring a threat of serious character and imminence.

• People vs. Cruz, 54 Phil. 24, 28 — Followed. The Court cited this case for the proposition that the right to two days to prepare for trial under Section 7, Rule 114 may be waived expressly or impliedly by not asking for time to prepare.

• People vs. Valte, 43 Phil. 907 — Distinguished. The Court distinguished this case because there the defendant exercised his right by demanding two days to prepare, whereas in the present case the defendant waived the right.

• United States vs. Garcia, 5 Phil. 58 — Followed. The Court cited this case for the proposition that it is not a defense to homicide that it was committed under an illegal order of an officer of the United States Army.

• Section 7, Rule 114, Rules of Court — Provides that a defendant after arraignment is entitled to at least two days to prepare for trial, except when the case is on appeal from the justice of the peace. The Court held this right may be waived expressly or impliedly.
• Sections 1, 7, and 11, Rule 108, Rules of Court — Define the preliminary investigation and distinguish between the investigation before arrest and the preliminary investigation proper. The Court held that the defendant expressly waived his right to the preliminary investigation proper.
• Article 11(6), Revised Penal Code — Exempts from criminal liability a person who acts in obedience to an order issued by a superior for some lawful purpose. The Court held this defense fails because the order was not for a lawful purpose.
• Article 12(5) and (6), Revised Penal Code — Exempt from criminal liability a person who acts under the compulsion of an irresistible force or under the impulse of an uncontrollable fear of an equal or greater injury. The Court held these defenses fail because no such compulsion or fear was established.
• Section 133, Commonwealth Act No. 3, as amended by Executive Order No. 86 (January 7, 1946) — Requires that when one Justice dissents from a decision imposing the death penalty, the penalty shall be reclusion perpetua instead of death. The Court applied this provision to reduce the sentence.

Moran, C.J., Paras, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concurred. Moran, C.J., certified that Mr. Justice Hilado concurred in the decision.

• Justice Perfecto — Dissented, arguing that the defendant was deprived of his constitutional rights, specifically the right to counsel and the right to two days to prepare for trial. He detailed the procedural history showing that Moreno was arrested on July 26, 1945, and was not provided counsel at any stage until trial; that three counsel de oficio were successively appointed, with the first two refusing to serve; and that the third, Atty. Timoteo de los Santos, admitted he was acting against his personal belief. Justice Perfecto argued that the trial court pressured the defendant into trial without preparation, that the counsel de oficio failed to cross-examine seven prosecution witnesses and made the prosecution's hostile witness Gregorio Magalit a defense witness, and that these violations of Sections 15 and 17, Article III of the Constitution warranted reversal and remand for a new trial with proper counsel. He voted to set aside the judgment and remand the case for a new trial.