People v. Amado v. Hernandez, G.R. No. L-6025, May 30, 1964

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whereabouts and identities are still unknown up tothe filing of this information, and helping one another,did then and there willfully, unlawfully and feloniouslypromote maintain, cause, direct and/or command the"Hukbong Mapagpalaya Ng Bayan", (HMB) or theHukbalahaps (HUKS) to rise publicly and take Armsagainst the Government or otherwise participatetherein for the purpose of overthrowing the same, as

in fact, the said "Hukbong Mapagpalaya Ng Bayan"or Hukbalahap (HUKS) have risen publicly and takenarms against the Government, by then and theremaking armed raids, sorties and ambushes, attacksagainst police, constabulary and army detachment,and as a necessary means to commit the crime ofrebellion, in connection therewith and in furtherancethereof, by then and there committing wanton acts ofmurder, spoilage, looting, arson, kidnappings,planned destruction of private and public buildings, tocreate and spread terrorism in order to facilitate theaccomplishment of the aforesaid purpose, as followsto wit: (Enumeration of thirteen attacks onGovernment 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 courtrendered 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 ofthe Communist Party of the Philippines and as such hadaliases, namely, Victor or Soliman; (2) that he was furnishedcopies of "Titis", a Communist publication, as well as otherpublications of the Party; (3) that he held the position ofPresident of the Congress of Labor Organizations; (4) that hehad close connections with the Secretariat of the CommunistParty and held continuous communications with its leaders andits members; (5) that he furnished a mimeographing machineused by the Communist Party, as well as clothes and suppliesfor the military operations of the Huks; (6) that he hadcontacted well-known Communists coming to the Philippinesand had gone abroad to the WFTU conference Brussels,Belgium as a delegate of the CLO, etc. Evidence was alsoreceived by the court that Hernandez made various speechesencouraging the people to join in the Huk movement in theprovinces.

The court also found that there was a close tie-up between theCommunist Party and the Congress of Labor Organizations, of

which Hernandez was the President, and that this Congresswas 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 thetestimonial as well as the documentary evidence,independently of each other, to find out if the said evidencesupports the findings of the court.

Testimonial Evidence

Amado V. Hernandez took the oath as member of theCommunist Party in the month of October, 1947, at the officesof the Congress of Labor Organizations at 2070 Azcarraga in

the presence of Guillermo Capadocia, Ramon Espiritu, PedroCastro, Andres Balsa, etc. As a Communist he was given thepseudonyms of Victor and Soliman, and received copies of the

Communist paper "Titis". He made various speeches on thefollowing dates and occasions:

(1) On August 29, 1948 before the Democratic PeaceRally of the CLO at Plaza Miranda, in which heannounced that the people will soon meet their dearcomrade in the person of Comrade Luis Taruc.

(2) On September 4, 1948 he conferred with HinduKhomal Goufar at the Escolta, at which occasionBalgos told Goufar that the PKM, CLO and the Huksare in one effort that the PKM are the peasants in thefield and the Huks are the armed forces of theCommunist Party; and the CLO falls under the TUDof the Communist Party. 1äwphï1.ñët

(3) On October 2, 1948 he went abroad to attend theSecond Annual Convention of the World Federationof Trade Unions and after arrival from abroad adinner was given to him by the people of Gagalangin,at which Hernandez delivered a speech and he saidthat he preferred to go with the Huks because he felt

safer with them than with the authorities of theGovernment.

(4) In April, 1949, he made a speech before a groupof tenants in Malabon attacking the frauds in the1947 elections, graft and corruption in the electionsand that if improvement cannot be made by theballots, they could be made by bullets; and enjoinedthe people to go to the hills and join Luis Taruc thehead of the dissidents in the Philippines.

(5) On October 2, 1949 he delivered a speech on theoccasion of the commemoration of the World Peaceat the CLO headquarters at 330 P. Campa. Heattacked the city mayor and incited the people to goto Balintawak and see Bonifacio there and thereafter join four comrades under the leadership of LuisTaruc.

(6) On October 16, 1949 he delivered a speechbefore a convention of the unemployed at 330 P.Campa. He asked the unemployed to approve aresolution urging the Government to give them jobs.In conclusion he said that if the Government fails togive them jobs the only way out was to join therevolutionary forces fighting in the hills. He furthersaid that Mao Tse Tung, leader of the People's Armyin China, drove Chiang Kai Shek from his country,and that Luis Taruc was also being chased byGovernment forces run by puppets like Quirino, etc.

(7) On January 13, 1950 there was another meetingat 330 P. Campa. In his talk Hernandez expressedregret that two foremost leaders of the CLO, Balgosand Capadocia, had gone to the field to join theliberation army of the HMB, justifying their going outand becoming heroes by fighting in the fields againstGovernment forces until the ultimate goal isachieved.

The above evidence was testified to by Florentino Diolata whowas the official photographer of the CLO since August, 1948.

On the tie-up between the Communist Party and the CLOGuillermo Calayag, a Communist and a Huk from 1942 to 1950,explained:



(1) The ultimate goal of the Communist Party is tooverthrow the president government by force of aimsand violence; thru armed revolution and replace itwith the so-called dictatorship of the proletariat theCommunist Party carries its program of armedoverthrow of the present government by organizingthe HMB and other forms of organization's such asthe CLO, PKM, union organizations, and the

professional and intellectual group; the CLO wasorganized by the Trade Union Division TUD of theCommunist Party.

(2) A good majority of the members of the ExecutiveCommittee and the Central Committee of the CLOwere also top ranking officials of the CommunistParty; activities undertaken by the TUD - the vitalundertaking of the TUD is to see that the directivescoming from the organizational bureau of theCommunist Party can be discussed within the CLOespecially the Executive Committee. And it is a factthat since a good majority of the members of theExecutive Committee are party members, there is notime, there is no single time that those directives and

decisions of the organizational department, thru theTUD are being objected to by the ExecutiveCommittee of the CLO. These directives refer to howthe CLO will conduct its functions. The executivecommittee is under the chairmanship of accused Amado V. Hernandez.

(3) The CLO played its role in the overall Communistprogram of armed overthrow of the presentgovernment and its replacement by the dictatorshipof the proletariat by means of propaganda - bypropagating the principles of Communism, by givingmonetary aid, clothing, medicine and other forms ofmaterial help to the HMB. This role is manifested inthe very constitution of the CLO itself whichexpounded 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 theFourth Annual Convention Souvenir Program of theCLO Exh. "V-1579"). Thru propaganda, the CLOpromoted the aims of Communist Party anddisseminated Communist ideas by:

(a) The conspicuous display of the portraitor, pictures of Crisanto Evangelista (Exh.V-1662), founder of Communism in thePhilippines, in the session hall of the CLOheadquarters at 2070 Azcarraga and thenat 330 P. Campa;

(b) The distribution of foreign communist

reading materials such as the WorldFederation of Trade Union Magazine,International Union of Students magazine,Voice magazine of the marine cooks of theCLO, World Committee of the Defenders ofthe Peace magazine, Free Bulgariamagazine, Soviet Russia Today magazineand World Federation of Democratic Youthmagazine (Exhs. V-911, V-907, V-910, V-899, V-912, V-853, W-996 and V-967);

(c) The publication and distribution of somelocal subversive publications such as the"Titis", "Bisig", Kidlat", which areCommunist Party organs; "The PhilippineLabor Demands Justice" and "Hands Off

Korea" authored by accused Amado V.Hernandez;

(d) Principles of Communism were alsopropagated thru lectures, meetings, and bymeans of organization of committees in theeducational department as well asresearches in the Worker's Institute of theCLO.

(4) The CLO also helped carry out the program of theCommunist Party thru infiltration of party membersand selected leaders of the HMB within the tradeunions under the control of the CLO. The CommunistParty thru the CLO assigned Communist Partyleaders and organizers to different factories in orderto organize unions. After the organization of theunion, it will affiliate itself with the CLO thru theCommunist leaders and the CLO in turn, will registersaid union with the Department of Labor; and theorientation and indoctrination of the workers iscontinued in the line of class struggle. After thisorientation and infiltration of the Communist Partymembers and selected leaders of the HMB with thetrade unions under the control of the CLO is alreadyachieved and the group made strong enough to carry

out its aims, they will begin the sporadic strikes andthe liquidation of anti-labor elements and anti-Communist elements and will create a so-calledrevolutionary crisis. That revolutionary crisis will bedone for the party to give directives to the HMB whoare fighting in the countrysides and made them cometo the city gates. The entry of the HMB is beingpaved by the simultaneous and sporadic strikes, byultimate general strikes thru the management of theCLO.

Important Documents Submitted at Trial

1. Documents which proved that Amado V.Hernandez used the aliases "Victor", or was referredto as "Victor" or "Soliman".

(a) Letter dated April 23, 1950 (signed)by Victor addressed to Julie telling thelatter of his sympathies for othercommunists, describing his experienceswith Communists abroad, telling Julie todispose of materials that may be sent byVictor. (Exh. D-2001-2004)

(b) "Paano Maisasagawa, etc." — mentions different groups of labor unionsof 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 HonofreMangila states that he knew AmadoHernandez as Victor from co-partymembers Hugo and Ely. (Exh. LL)

(d) Letter of Elias to Ka Eto requesting thelatter to deliver attached letter to Victor.(Exh. 1103)

(e) Saulo's letter about his escape, asksVictor why his press statement was notpublished in the newspapers. (Exh. C-362)

Letter was however published byHernandez in the Daily Mirror.





(h) Taruc's letter to Maclang showsthat Soliman had sent 7 lessons to Taruc.(Exh. D-451-451-A)

(i) Associated with fellow rankingCommunist leaders.

The Court upon consideration of the evidence submitted, found(1) that the Communist Party was fully organized as a party andin order to carry out its aims and policies a established aNational Congress, a Central Committee (CC), Politburo PB,Secretariat (SEC), Organization Bureau (OB), and NationalCourier or Communication Division (NCD), each bodyperforming functions indicated in their respective names; (2)that in a meeting held on August 11, 1950 the SEC discussedthe creation of a Military Committee of the Party and a newGHQ, under which on September 29, 1950 the SEC organizeda special warfare division, with a technological division; (3) thaton May 5, 1950 a body known as the National IntelligenceDivision was created, to gather essential military intelligenceand, in general, all information useful for the conduct of thearmed struggle (4) that a National Finance Committee was alsoorganized as a part of the Politburo and answerable to it; (5)

that the country was divided into 10 Recos, the 10th Recocomprising the Manila and suburbs command; (6) that sinceNovember, 1949 the CPP had declared the existence of arevolutionary situation and since then the Party had goneunderground and the CPP is leading the armed struggle fornational liberation, and called on the people to organizeguerrillas and coordinate with the HMB on the decisive struggleand final overthrow of the imperialist government; (7) that inaccordance with such plan the CPP prepared plans forexpansion and development not only of the Party but also ofthe HMB; the expansion of the cadres from 3,600 in July 1950to 56,000 in September 1951, the HMB from 10,800 in July1950 to 172,000 in September 1951, et seq.

Around the month of January, 1950 it was decided by the CPPto intensify HMB military operations for political purposes. ThePolitburo sanctioned the attacks made by the Huks on theanniversary of the HMB on March 25, 1950. The HMB attacksthat 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 lowercourt's decision, is as follows:

The evidence does not show that the defendants inthese cases now before this Court had taken a directpart in those raids and in the commission of thecrimes that had been committed. It is not, however,the theory of the prosecution that they in fact haddirect participation in the commission of the same butrather that the defendants in these cases havecooperated, conspired and confederated with theCommunist Party in the prosecution and successfulaccomplishment of the aims and purposes of the saidParty thru the organization called the CLO (Congressof Labor Organizations).

The Court found that the CLO is independent and separatefrom the CPP, organized under the same pattern as the CPP,having its own National Congress, a Central Committee (whichacts in the absence of and in representation of the NationalCongress), an Executive Committee (which acts when the

National Congress and the Executive Committee are not insession), and seven permanent Committees, namely, ofOrganization, Unemployment and Public Relations, Different

Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist Party dominate thecommittees of the CLO. The supposed tie-up between CPPand the CLO of which Hernandez was the President, isdescribed 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 witnessGuillermo S. Calayag, one-time ranking member of theCommunist Party and the CLO who typewrites the "Patnubaysa Education" from a handwritten draft of Capadocia, which isone of the texts used in the Worker's institute of the CLO. According to him, the CLO plays its role by means ofpropaganda, giving monetary aid, clothing, medicine and othermaterial forms of help to the HMB, which constitutes the armedforces of the Communist Party. Propaganda is done bylectures, meetings, and the organization of committees of theeducational department as well as researches at the CLOWorker's Institute.

Another way of helping the Communist Party of thePhilippines is by allowing the Communist Partyleaders to act as organizers in the different factories

in forming a union. These Party Members helpworkers in the factories to agitate for the eradicationof social classes and ultimately effect the totalemancipation of the working classes thru theestablishment of the so-called dictatorship of theproletariat. It is the duty of these Communist Partymembers to indoctrinate uninitiated workers in theunion to become proselytes of the Communist Partyideology. After the right number is secured and aunion is formed under a communist leader, this unionis affiliated with the CLO and this in turn registers thesame with the Department of Labor. The orientationand indoctrination of the masses is continued withthe help of the CLO. The primary objective of theCLO is to create what is called a revolutionary crisis.It seeks to attain this objective by first making

demands from the employers for concessions whichbecome more and more unreasonable until theemployers would find it difficult to grant the same.Then a strike is declared. But the strikes are onlypreparation for the ultimate attainment of theCommunist goal of armed overthrow of thegovernment. After the workers in the factories havealready struck in general at the behest of theCommunist Party thru the CLO a critical point isreached when a signal is given for the armed forcesof the Communist Party, the HMB, to intervene andcarry the revolution now being conducted outside towithin the city.

On the basis of the above findings, the court below foundHernandez 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 theproportionate amount of the costs.

Our study of the testimonial and documentary evidence,especially those cited by the Court in its decision and by theSolicitor General in his brief, discloses that defendant-appellant Amado V. Hernandez, as a Communist, was an activeadvocate of the principles of Communism, frequently exhortinghis hearers to follow the footsteps of Taruc and join the uprisingof the laboring classes against capitalism and more specificallyagainst America and the Quirino administration, which hedubbed as a regime of puppets of American imperialism. Butbeyond the open advocacy of Communistic Theory thereappears 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, whatwas his relation to the rebellion? If, as testified to by GuillermoS. Calayag, the CLO plays merely the role of propagation bylectures, meetings and organization of committees of educationby Communists; if, as stated, the CLO merely allowedCommunist Party leaders to act as organizers in the differentfactories, to indoctrinate the CLO members into the CommunistParty and proselytize them to the Communist ideology; if, as

also indicated by Calayag, the CLO purports to attain theultimate overthrow of the Government first by making demandsfrom employers for concessions until the employers find itdifficult to grant the same, at which time a strike is declared; if itis only after the various strikes have been carried out and acrisis is thereby developed among the laboring class, that theCommunist forces would intervene and carry the revolution— itis apparent that the CLO was merely a stepping stone in thepreparation of the laborers for the Communist' ultimaterevolution. In other words, the CLO had no function but that ofindoctrination and preparation of the members for the uprisingthat would come. It was only a preparatory organizationprior to revolution, not the revolution itself. The leader ofthe CLO therefore, namely Hernandez, cannot be consideredas a leader in actual rebellion or of the actual uprising subjectof the accusation. Hernandez, as President of the CLO

therefore, by his presidency and leadership of the CLO cannotbe considered as having actually risen up in arms in rebellionagainst the Government of the Philippines, or taken part in theconspiracy to commit the rebellion as charged against him inthe present case; he was merely a propagandist andindoctrinator of Communism, he was not a Communistconspiring to commit the actual rebellion by the mere fact of hispresidency of the CLO.

The court below declares that since November 1949 theCommunist Party of the Philippines had declared the existenceof the revolutionary situation and since then the Party had goneunderground, with the CPP leading the struggle for nationalintegration and that in the month of January 1950, it wasdecided by the said Party to intensify the HMB militaryoperations for political purposes. The court implicates theappellant Hernandez as a co-conspirator in this resolution oracts of the Communist Party by his mere membership thereto.We find this conclusion unwarranted. The seditious speechesof Hernandez took place before November, 1949 when theCPP went underground. The court below has not been able topoint out, nor have We been able to find among all actsattributed to Hernandez, any single fact or act of his from whichit may be inferred that he took part in the deliberationsdeclaring the existence of a revolutionary situation, or that hehad gone underground. As a matter of fact the prosecution'sevidence is to the effect that Hernandez refused to gounderground preferring to engage in what they consider thelegal battle for the cause.

We have also looked into the different documents which have

been presented at the time of the trial and which wereconfiscated from the office of the Politburo of the CommunistParty. The speeches of Hernandez were delivered before thedeclaration by the Communist Party of a state of revolutionarysituation in 1949. Neither was it shown that Hernandez was amember of the Executive Committee, or of the SEC, or of thePolitburo of the Communist Party; so NO presumption can arisethat he had taken part in the accord or conspiracy declaring arevolution. In short, there has been no evidence, direct orindirect, to relate or connect the appellant Hernandez with theuprising or the resolution to continue or maintain said uprising,his participation in the deliberations leading to the uprisingbeing inferred only from the fact that he was a communist.

The practice among the top Communists, as declared by thetrial court appears to have been for important members, if they

intend actually to join the rebellion, to go underground , whichmeant 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, toSaulo and Hernandez, which reads:

11. In view of the new developments in the city, sendout Elias who prefers to work outside. Presentproblem of fighting legally to Com. Soliman. If

Soliman is prepared for martyrdom, retain him to fightlegally. If not, send him out with Elias. Same goeswith Com. Mino and other relatively exposed massleaders.

And the lower court itself found that whereas Saulo wentunderground and joined the underground forces outside theCity, Hernandez remained in the City, engaged in the work ofpropaganda, making speeches and causing the publication ofsuch matters as the Communist Party leaders directed him topublish.

That Hernandez refused to go underground is a fact which isfurther corroborated by the following reasons (excuses) givenby 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 aterm which was to end the year 1951.

As a matter of fact the SEC gave instructions to Hernandez notto be involved with Nacionalista Rebels, and reported to thePolitburo that Hernandez "has tendencies of careerism, andtending to want to deal with leaders of the Nacionalista Partyinstead of following CPP organizational procedures."

The court below further found that Hernandez had beenfurnishing supplies for the Huks in the field. But the verydocument dated December 3, 1949, Exhibit D-420422, cited inthe decision (printed, p. 49), is to the effect that clothes andshoes that Hernandez was supposed to have sent have notbeen received. It is true that some clothes had been sent thruhim to the field, but these clothes had come from a crewmember of a ship of the American President Lines. He also,upon request, sent a portable typewriter to the SEC orPolitburo. Furthermore, a certain Niagara Duplicating machinereceived by Hernandez from one Rolland Scott Bullard a crewmember of the SS President Cleveland, appease later to havebeen forwarded by him to the officers of the SEC or thePolitburo.

Lastly, it further appears that Taruc and other CPP leadersused to send notes to appellant Hernandez, who in turn issuedpress 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 aCommunist.

The acts of the appellant as thus explained and analyzed fallunder the category of acts of propaganda, but do not prove thathe actually and in fact conspired with the leaders of theCommunist Party in the uprising or in the actual rebellion, forwhich acts he is charged in the information. And his refusal togo underground because of his political commitmentsoccasioned by his term of election as president of the CLO andthe impressions caused by his acts on the Communist leaders,to the effect that he was in direct communication orunderstanding with the Nacionalista Party to which he wasaffiliated, creates in Us the reasonable doubt that it was not hisCommunistic leanings but his political ambitions, that motivatedhis speeches sympathizing with the Huks. For which reasonWe hold that the evidence submitted fails to prove beyondreasonable 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 oranyone's membership in the Communist Party per serenderHernandez or any Communist guilty of conspiracy to commitrebellion under the provisions of Article 136 of the RevisedPenal Code? The pertinent provision reads:

ART. 136. Conspiracy and proposal to commit

rebellion or insurrection.—

The conspiracy andproposal to commit rebellion or insurrection shall bepunished, respectively, by prision correccional in itsmaximum period and a fine which shall not exceed5,000 pesos, and by prision correccional in itsmedium period and a fine not exceeding 2,000pesos.

The advocacy of Communism or Communistic theory andprinciple is not to be considered as a criminal act ofconspiracy unless transformed or converted into anadvocacy of action. In the very nature of things, mereadvocacy of a theory or principle is insufficient unless thecommunist advocates action, immediate and positive, theactual agreement to start an uprising or rebellion or anagreement forged to use force and violence in an uprising

of the working class to overthrow constituted authorityand seize the reins of Government itself. Unless action isactually advocated or intended or contemplated, theCommunist is a mere theorist, merely holding belief in thesupremacy of the proletariat a Communist does not yetadvocate the seizing of the reins of Government by it. As atheorist the Communist is not yet actually considered asengaging in the criminal field subject to punishment. Onlywhen the Communist advocates action and actualuprising, war or otherwise, does he become guilty ofconspiracy to commit rebellion. Borrowing the language ofthe Supreme Court of the United States:

In our jurisprudence guilt is personal, and when theimposition of punishment on a status or on conductcan only be justified by reference to the relationshipof that status or conduct to other concededly criminalactivity (here advocacy of violent overthrow), thatrelationship must be sufficiently substantial to satisfythe concept of personal guilt in order to withstandattack under the Due Process Clause of the Fifth Amendment. Membership, without more, in anorganization engaged in illegal advocacy, it is nowsaid, has not heretofore been recognized by thisCourt to be such a relationship. ... .

What must be met, then, is the argument thatmembership, even when accompanied by theelements of knowledge and specific intent, affords aninsufficient quantum of participation in theorganization's alleged criminal activity, that is, an

insufficiently significant form of aid andencouragement to permit the imposition of criminalsanctions on that basis. It must indeed be recognizedthat a person who merely becomes a member of anillegal organization, by that "act" alone need be doingnothing more than signifying his assent to itspurposes and activities on one hand, and providing,on the other, only the sort of moral encouragementwhich comes from the knowledge that others believein what the organization is doing. It may indeed beargued that such assent and encouragement do fallshort of the concrete, practical impetus given to acriminal enterprise which is lent for instance by acommitment on the part of the conspirator to act infurtherance of that enterprise. A member, asdistinguished from a conspirator, may indicate his

approval of a criminal enterprise by the very fact ofhis membership without thereby necessarilycommitting himself to further it by any act or course

of conduct whatever. (Scales v. United States, 367U.S. 203, 6 L. ed. 782)

The most important activity of appellant Hernandez appears tobe the propagation of improvement of conditions of laborthrough his organization, the CLO. While the CLO of which heis the founder and active president, has communistic

tendencies, its activity refers to the strengthening of the unityand cooperation between labor elements and preparing themfor struggle; they are not yet indoctrinated in the need of anactual war with or against Capitalism. The appellant was apolitician and a labor leader and it is not unreasonable tosuspect that his labor activities especially in connectionwith the CLO and other trade unions, were impelled andfostered by the desire to secure the labor vote to supporthis political ambitions. It is doubtful whether his desire tofoster the labor union of which he was the head wasimpelled by an actual desire to advance the cause ofCommunism, not merely to advance his politicalaspirations.

Insofar as the appellant's alleged activities as a Communist areconcerned, We have not found, nor has any particular act on

his part been pointed to Us, which would indicate that he hadadvocated action or the use of force in securing the ends ofCommunism. True it is, he had friends among the leaders ofthe Communist Party, and especially the heads of the rebellion,but this notwithstanding, evidence is wanting to show that heever attended their meetings, or collaborated and conspiredwith said leaders in planning and encouraging the acts ofrebellion, or advancing the cause thereof. Insofar as thefurnishing of the mimeograph machine and clothes isconcerned, it appears that he acted merely as an intermediary,who passed said machine and clothes on to others. It does notappear that he himself furnished funds or material help of hisown to the members of the rebellion or to the forces of therebellion 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, isclear proof of his non-participation in the conspiracy to engagein or to foster the rebellion or the uprising.

We next consider the question as to whether the fact thatHernandez delivered speeches of propaganda in favor ofCommunism and in favor of rebellion can be considered as acriminal act of conspiracy to commit rebellion as defined in thelaw. In this respect, the mere fact of his giving andrendering speeches favoring Communism would not makehim guilty of conspiracy, because there was no evidencethat the hearers of his speeches of propaganda then andthere agreed to rise up in arms for the purpose ofobtaining the overthrow of the democratic government asenvisaged by the principles of Communism. To this effect is

the following comment of Viada:

CUESTION 10. El que hace propaganda entre susconvecinos, induciendoles a que el dia que seanunciara la subasta de consumes se echaran a lacalle para conseguir aunque fuera preciso acudir a lafuerza el reparto entre los vecinos ricos solamente,sera responsable de un delito de conspiracion parala sedicion? — El Tribunal Supreme ha resuelto lanegative al casar cierta sentencia de la Audiencia deValencia, que entendio lo contrario: "Considerandoque, con areglo a lo que dispone el art. 4. del CodigoPenal, hay conspiracion cuando dos o mas personasse conciertan para la execution de un delito yresuelven cmeterlo; y no constando que existiera eseconcierto en cuanto a los hechos que se refieren en

la tercera pregunta del veredicto, pues en ella solose habla de los actos de induccion que el procesadorealizo, sin expresar el efecto que la mismo produjo



en el animo de las personas a quienes se dirigian, nisi estas aceptaron o no lo que se las propuso, resultaevidence que faltan los clementos integrantes de laconspiracion, 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 noconcrete evidence proving beyond reasonable doubt that theappellant (Hernandez) actually participated in the rebellion or inany act of conspiracy to commit or foster the cause of therebellion. 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 shareof the costs de oficio.

APPEAL OF OTHER DEFENDANTS-APPELLANTS

All the other defendants were found guilty as accomplices inthe crime of rebellion as charged in the information and wereeach sentenced to suffer the penalty of 10 years and 1 dayof prision mayor , with the accessories provided by law, and to

pay their proportionate share of the costs.

Legal Considerations. — Before proceeding to consider theappeals of the other defendants, it is believed useful if notnecessary to lay dawn the circumstances or facts that may bedeterminative of their criminal responsibility or the existence ornature thereof. To begin with, as We have exhaustivelydiscussed in relation to the appeal of Hernandez, we do notbelieve that mere membership in the Communist Party or in theCLO renders the member liable, either of rebellion or ofconspiracy to commit rebellion, because mere membership andnothing more merely implies advocacy of abstract theory orprinciple without any action being induced thereby; and thatsuch advocacy becomes criminal only if it is coupled with actionor advocacy of action, namely, actual rebellion or conspiracy tocommit 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 laboringclass from thraldom. By membership in the HMB, one alreadyadvocates uprising and the use of force, and by suchmembership he agrees or conspires that force be used tosecure the ends of the party. Such membership, therefore,even if there is nothing more, renders the member guilty ofconspiracy 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 solicitingcontributions, or acting as courier, he thereby becomes guilty of

conspiracy, unless he takes to the field and joins in therebellion or uprising, in which latter case he commits rebellion.

In U.S. v. Vergara, infra, the defendants organized a secretsociety commonly known as the "Katipunan", the purpose ofwhich was to overthrow the government by force. Each of thedefendants on various times solicited funds from the people ofMexico, Pampanga. The Court held that the defendants wereguilty of conspiracy and proposal to commit rebellion orinsurrection and not of rebellion or insurrection itself. Thus, theCourt ruled that:

From the evidence adduced in this case we are ofthe opinion that the said defendants are guilty, not ofinciting, setting or foot, or assisting or engaging in

rebellion, but rather of the crime of conspiring tooverthrow, put down, and destroy by force theGovernment of the United States in the Philippine

Islands, and therefore we find that said defendants,and each of them, did, together with others, in themonths of February and March, 1903, in the Provinceof Pampanga, Philippine Islands, conspire tooverthrow, put down, and to destroy by force theGovernment of the United States in the PhilippineIslands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.)

JUAN J. CRUZ

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

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

AMADO RACANDAY

The trial court found him guilty as a Communist, a Secretaryand Executive Committee member of the CLO acommunications center of the Communist Party, having beenfound in possession of letters from Federico Maclang toSalome Cruz, and solicitor of contributions for the Huks.

Racanday admits being a member of the Executive Committeeof the CLO Editor of the Kidlat of the Government WorkersUnion, receiving copies of the Titis. Calayag testified that hewas a member of the Central Committee of the CommunistParty entrusted with the duty of receiving directives of theRegional Committee of the Communist Party.

The letters found in his possession are dated February 14,1950, before the Communist Party went underground. We havebeen unable to find the evidence upon which the court bases itsconclusion that he received contributions for the Huks. Withthese circumstances in mind, We are not convinced beyondreasonable doubt that as a Communist he took part in theconspiracy among the officials of the Communist Party to takepart and support the rebellion of the Huks.

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

GENARO DE LA CRUZ

The court found him to be a Communist since 1945, an officerof an organized Communist branch in Pasay City, a member of

the Central Committee and Treasurer of the CLO. He admittedhis membership and his position as member of the executivecommittee and treasurer of the CLO these facts beingcorroborated by the witness Guillermo Calayag.

His membership in the Communist Party dates as far back asthe year 1945. As a communist, Genaro de la Cruz receivedquotas and monetary contributions coming from the areasunder his jurisdiction, and one time he made a receipt from amember from Caloocan at the CLO headquarters at Azcarragasigning the receipt as "Gonzalo" which is one of his aliases. Healso distributed copies of the "Titis" magazine. ̀

While his membership in the Communist Party plus his havingreceived contributions for the party indicate that he is an active

member, it was not shown that the contributions that hereceived from Communist Party members were receivedaround the year 1950 when the Central Committee of the



Communist Party had already agreed to conspire and gounderground and support the Huk rebellion. Under thesecircumstances We cannot find him guilty of conspiracy tocommit rebellion because of the lack of evidence to prove hisguilt beyond reasonable doubt.

JULIAN LUMANOG

The court found him to be an organizer of HMB among the millworkers, solicited contributions for the HMB and CentralCommittee member of the CLO as per Testimony of GuillermoCalayag.

He admitted that he joined the Communist Party because hewas made to believe that the Party is for the welfare of thelaborers. He also admitted being a member of the CentralCommittee of the CLO Calayag testified that Lumanogorganized the HMB units of the Communist Party in the LumberUnions and attended a Communist meeting held by Maclang.

Domingo Clarin testified that he (Julian Lumanog) used to givethe money collected by him to one Nicasio Pamintuan, one of

the members of the HMB Special Unit Trigger Squad) in Manilafor the use of the said unit.

Considering that the HMB was engaged in a rebellion tooverthrow the government, it is evident that by giving hiscontributions he actually participated in the conspiracy tooverthrow the government and should, therefore, be held liablefor such conspiracy, and should be sentenced accordingly.

FERMIN RODILLAS

The trial court found that Fermin Rodillas was a member of theCPP and the CLO that his activities consisted in solicitingcontributions, in cash and in kind, from city residents for the useof the HMB, turning over said collections to the Party; that hehas given asylum to a wanted Hukbalahap at his house at JuanLuna St., Gagalangin, which house was used as Military post.The above findings of the court are fully supported by thetestimony of Domingo Clarin.

Considering that while he has not actually taken part in therebellion, he has shown sympathy with the cause by solicitingcontributions for it and had given shelter to the Huks. We feelthat the court was fully justified in finding him guilty, but Wehold that he should be declared liable merely as a co-conspirator in the crime of conspiracy to commit rebellion, andshould be sentenced accordingly.

BAYANI ESPIRITU

This appellant was found by the court to be a Communist, hehaving admitted membership in the Communist Party since1945; that his duties as a Communist was to help in the officeof the National Finance Committee, assorting papers andwritten documents; that sometimes he accompanied thepurchaser of medicines, shoes, papers, foodstuffs and clothingto be given to the Huks; that he is a member of theCommunication Division of the CPP in Manila, in charge ofdistribution of letters or communications; that he admits havingwritten to Salome Cruz, courier of the Communist Party, whenhe asked for his necessities, such as money and shoes, etc.

The facts found by the court are sufficiently supported by thecommunications 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 amember of the Communist Party was submitted in court and in

it he admits obedience to all orders of the Party and topropagate the stability of the PKP.

Considering that the PKP was engaged in an actual uprisingagainst the constituted Government and that Bayani Espirituwas in constant communication with the Communist Party andserved it as courier, We believe that the court was fully justified

in finding him guilty. However, We believe that not havingactually taken up arms in the uprising he may only be declaredguilty of conspiracy to commit rebellion.

TEOPISTA VALERIO

The court below found that this appellant joined theCommunists in 1938 in San Luis, Pampanga, under Casto Alejandrino, who later became her common-law husband; thather aliases are "Estrella" and "Star"; that she was found inpossession of various documents written to top Communistslike Alejandrino, Lava and Romy, as well as a letter from Taruccongratulating 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, laterChairman of the Finance Department, and then promoted toFinance Officer of the Central Luzon Committee. AliciaVergara, a Huk courier, testified that she delivered letter fromthe mountains to Teopista Valerie, who was in turn also acourier.

Without considering the close relationship that she had with topCommunist Casto Alejandrino, We are satisfied that she herselfwas, aside from being a Huk courier, also a Huk, a member ofthe HMB from 1942 to 1951. As she was a Communist and atthe same time a member of the HMB, and considering that theHMB was engaged in an uprising to uproot the legitimategovernment, there cannot be any question that she was inconspiracy with the other members of her Party against theconstituted government. We hold, therefore, that the evidenceproves beyond reasonable doubt that she is guilty of conspiracyto commit rebellion.

DEFENDANTS NOT INCLUDED IN DECISION

In Crim. Case No. 15841 (G.R. No. L-6025) the charge againstGuillermo Capadocia, Mariano P. Balgos, Alfredo B. Saulo andJacobo Espino was dismissed because they have not beenapprehended at the time of the trial.

PEOPLE VS. EVANGELISTA, 57 PHIL. 354 ANDREPUBLIC ACT NO. 1700, DISTINGUISHED

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

On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in anyorganization 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 thetime of the commission of the acts charged against appellants



(committed 1945-1950) ; the Anti-Subversion Act punishesparticipation or membership in an organization committed tooverthrow the duly constituted Government, a crime districtfrom 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 fromthe charges contained in the information, with theirproportionate share of the costs de oficio. The defendants-appellants Julian Lumanog and Fermin Rodillas in CriminalCase No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in CriminalCase No. 15479 (G.R. No. L-6026) are hereby found guilty ofthe crime of conspiracy to commit rebellion, as defined andpunished in Article 136 of the Revised Penal Code, and eachand everyone of them is hereby sentenced to sufferimprisonment for five years, four months and twenty-one daysof prision correccional , and to pay a fine of P5,000.00, withsubsidiary imprisonment in case of insolvency and to pay theirproportional 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.