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TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

KIDNAPPING AND ILLEGAL DETENTION


G.R. No. 74630 September 30, 1991 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAIDA TOMIO alias SATO TOSHIO and NAKAJIMA TAGAHIRO alias YAMADA TAKAO, accused-appellants. G.R. No. 75576 September 30, 1991 IN THE MATTER OF PETITION FOR HABEAS CORPUS OF TADAHIRO NAKAJIMA and TOMIO MAEDA, petitioners. DAVIDE, JR., J.:p Appellants were arrested at about 3:45 o'clock in the afternoon of 12 May 1986 at the main branch of the Rizal Commercial Banking Corporation (RCBC) in Makati, Metro Manila, while allegedly receiving the partial payment of the ransom money from Tatsumi Nagao, a Japanese tourist. On 15 May 1986, an Information for Kidnapping and serious illegal detention for ransom (Article 267 of the Revised Penal Code) was filed against them with the Regional Trial Court of Manila by Vivencio Dionido, Assistant City Fiscal of Manila, which was docketed as Criminal Case No. 86-45055. The accusatorial portion of the Information reads: That on or about May 2, 1986, and subsequently thereafter, in the City of Manila, Philippines, the said accused, conspiring and confederating together with six (6) others whose true names, real Identities and present whereabouts are still unknown and helping one another, being then private individuals, did then and there wilfully, unlawfully and feloniously, for the purpose of extorting ransom from the immediate family of TATSUMI NAGAO, kidnap or detain the latter and deprive him of his liberty, without legal justifications and against his will. Contrary to Law. The information was filed after an ex-parte preliminary investigation, conducted pursuant to General Order No. 39, since the offended party is a tourist. This General Order grants civil courts concurrent jurisdiction with the military tribunals over crimes where the offended party is a tourist or a transient, which the former has to dispose of within twenty-four (24) hours after their filing by the arresting officers. 1 On 16 May 1988, the trial court issued an Order setting the arraignment and trial of the appellants on 19 May 1986 an appointing Citizens Attorney Abdulkalim Askali of the CLAO (now PAO.) as counsel de officio for the accused. 2 On 19 May 1986, appellants, through a de parte counsel, Jose T. Arroyo, filed with the Office of the City Fiscal of Manila a Very Urgent Motion For Re-investigations 3 alleging therein that the Information was filed without the benefit of a preliminary investigation and that they are innocent, which they can prove at a preliminary investigation. However, the records fail to show that Atty. Arroyo insisted on this motion. On the contrary, at the arraignment on 19 May 1986, he categorically stated that the appellants were ready for arraignment, and even requested for a Japanese interpreter, which was not favorably acted upon since the appellants understand and can speak English and Tagalog. 4 Both having entered a plea of not guilty, trial proceeded immediately. 5 At the trial on that day and the succeeding two days, the prosecution presented seven witnesses, namely: Pat. Eugenio Guillermo, Pat. Marlon Ursua, Cpl. Virgilio Cabural, complainant Tatsumi Nagao, Sgt. Jovito Gutierrez, Wally Martinez and Daishin Nagao, and offered documentary exhibits. For their defense, appellants relied on their own testimonies which they gave in open court on 22 May 1986. On 27 May 1986, the trial court promulgated a decision finding the appellants guilty beyond reasonable doubt of the crime charged and sentencing each of them to suffer the death penalty and to pay the costs. 6 The case is now before Us for automatic review. The facts of the case, as established by the evidence for the prosecution and summarized by the Solicitor General in the Brief for the Appellee, are: Tatsumi Nagao, a Japanese national, arrived in Manila on April 29, 1986 for a five-day vacation tour and was billeted at the Holiday Inn (pp. 5-6, tsn, May 21, 1986). On May 2, 1986, while Nagao was having lunch alone at the coffee shop of the hotel, two (2) Japanese men approached his table and asked him if he were a Japanese to which he answered in the affirmative. Later, he came to know one of the men as Maida Tomio alias Sato Toshio and the other as Mitamura. They joined him at his table and informed him that they have been in the Philippines for quite a time and offered themselves as his guides in Manila. Thereafter, Mitamura brought him to the sauna bath of the hotel and a department store in Manila. Eventually, they ended up at the Leo's Restaurant located along Roxas Boulevard at around 7:30 o'clock in the evening where they had dinner. Before leaving the restaurant, Nagao's companion placed a pack of cigarettes on his (Nagao's) shirt pocket and him to just wait because he has to talk to a taxi driver. After taking few steps from the restaurant, Nagao was approached by five (5) plainclothesmen who Identified themselves as policemen. They bodily searched him and found the pack of cigarettes earlier given him which the policemen claimed contained marijuana. Thereafter, the policemen brought him to the Southern Police District Station (pp. 23-26 tan, May 20, 1986).

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


While Nagao was at the police station, accusedappellant Tagahiro Nakajima alias Yamada arrived. Later, Sato Toshio alias Maida Tomio also arrived. Both acted as interpreters for him. One of them inform him that if he is found guilty of possession of marijuana, he can sentenced from six (6) to twelve (12) years imprisonment. The two (2) then suggested that Nagao give money to the policemen who, they claim, demanded U.S. $100,000.00 for his release. Nagao agreed. Thereafter, Toshio and Nakajima informed him that they had advanced the payment of the bribe money to the policemen who, accordingly, agreed to release him (pp. 36-41, tsn, May 20, 1986). Thereafter, Nagao returned to his hotel escorted by the appellants and a policeman. While there, his escorts did not allow him to leave the hotel. They also demanded that he immediately call up his parents in Japan for the money they allegedly advanced. Instead of calling up his parents, he called up a friend and told him of his predicament. The three escorts stayed with him in the hotel up to 10:00 o'clock the following morning. Thereafter, they checked out and transferred to the Intercontinental Hotel in Makati. Appellants again ordered Nagao to call up his parents. Later, appellants transferred Nagao to the Philippine Village Hotel where they again asked him to call up his father in Japan about the money. Nagao's father refused to pay the amount demanded but when Sato talked to him over the phone, he agreed to pay three million yen (pp. 17-31, tsn, May 21, 1986). From the Philippine Village Hotel, Nagao was brought by the appellants to the Virra Condominium in Makati. When he called up his father upon orders of the appellants, he learned that his father had already remitted money to the Rizal Commercial and Banking Corporation (RCBC) in Makati. Forthwith, appellants brought Nagao to RCBC where he withdrew U.S. $1,850.00 and gave it to them. Upon leaving the bank, they were met by policemen from the Western Police District whose help had been earlier sought on May 8, 1986 by the Japanese Embassy in Manila. Appellants and Nagao were brought to the Western Police District for investigation (pp. 38-40, tsn, May 19, 1986). Appellants were subsequently charged with the crime of kidnapping and serious illegal detention. ... 7 Upon the other hand, the version of the accused-appellants, as testified to by them, is summarized by the trial court as follows: The version given by the defense in exculpation of the accused is as follows: On May 2, 1986, the accused NAKAJIMA TAGAHIRO alias YAMADA TAKAO met for the first time Tatsumi Nagao at the Southern Police District headquarters in Manila. Tatzumi had been arrested by the police earlier for possessing marijuana cigarettes and since he could not speak English very well he was contacted to act as Nagao's interpreter. Nagao intimated to him that he (Nagao) wanted to settle the case and offered money to the police. The accused MAIDA TOMIO alias SATO TOSHIO later came and together they requested the police to release Nagao because according to him the marijuana was not his but belonged to somebody who gave it to him. Nagao told the accused that he offered to pay the amount of US $100,000 to the police which he said he would borrow them from a friend. Yamada told Nagao that the amount was too much and suggested that he (Nagao) should call his father in Japan to send the money here. Nagao was ultimately released by the police for some reason not known to Yamada and he went back to his hotel at Holiday Inn together with the accused YAMADA and SATO. At the hotel Nagao called up his friend in Japan with the help of YAMADA who placed the call since Nagao cannot speak English. YAMADA did not have occasion to talk to Nagao's friend over the phone. After 30 minutes, another call was made by Nagao to Japan. That night of May 2 both accused slept with Nagao in the latter's room at Holiday Inn due to Nagao's request not to leave him inside the hotel. The following day, May 3, Nagao did not know where to go so the accused suggested they look for the cheapest hotel or one where they could stay on credit. The accused MAIDA then made arrangements with a travel agency and, after checking in at the Intercontinental Hotel, they checked out at Holiday Inn and transferred to the Intercontinental Hotel where they stayed up to May 7. At this hotel, Nagao made many phone calls to Japan the accused YAMADA always placing the calls for Nagao. During their stay at the hotel the accused and Nagao went on foot to see a movie at the Quad Theater and to eat at a Japanese restaurant. They also went to Maalicaya Sauna Bath in Quezon City about four times around 10:00 to 11:00 in the evening where Nagao was left alone in one of the rooms with his massage girl attendant. On some of those occasions Nagao would finish and would wait for the accused at the lobby. Twice Yamada brought Nagao to his house because Nagao requested him not to leave him. On one occasion, the three of them brought down a Filipina girl from their hotel room but only Nagao accompanied her outside the hotel for five to fifteen minutes to see her off and then he came back to the hotel. Yamada denies that he and Sato were always guarding Nagao. As a matter of fact, one time while they were at Virra Condominium the accused went out together to meet some Japanese in Roxas Boulevard around midnight and went back to the hotel almost 4:00 in the morning leaving Nagao alone in the hotel room in the meantime. At Virra Condominium they stayed for two (2) or three (3) days together in one room with Nagao sometimes holding the key to the room. There Nagao also would go out to buy something, eat meals and have some fun. He even bought Nagao, who was with him, a tshirt in Makati where there were many people. With the help of accused Maida, Nagao made an overseas call to Japan at Virra.

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


The reason they went along with Nagao to the RCBC bank on May 12 was that he did not know how to go there so they brought him to the bank so that he could withdraw the remittance from Japan which was intended as payment for his hotel accommodation and other expenses. After their arrest at the bank they were brought to the WPD headquarters about 4:30 in the afternoon where he (Yamada) was hit by the policemen on his face, body and abdomen. He was also brought inside a room where his hands and feet were tied with a rope and his face covered with cloth after which water was poured on his nose and mouth while the police were asking him questions. In fact, they started hitting him at the bank while he was handcuffed. Besides, his watch costing around 250,000 yen, his 100 grams 18karat gold bracelet and his necklace were all taken from him and his Mustang car confiscated. His driver's license was also taken and he lost his money in the amount of almost P3,000.00. The police did not even want to accept the name that he gave them which was Nakajima Tagahiro but insisted on adopting Yamada as his name. When his statement was taken he was not asked to seek the assistance of a lawyer. It was the investigator who made the answers in the statement and he was not even allowed to read it but just to sign it which he did almost 3:00 or 4:00 in the morning already after being subjected to blows on his face. He declared that he never demanded money from Nagao for his release. On cross-examination Yamada admitted he is an immigrant and has stayed in the Philippines for almost 12 years but is always going back and forth to Japan. TOMIO MAIDA alias Sato Toshio also met Tatsumi Nagao for the first time on May 12, 1986 but at the coffee shop of Holiday Inn where Tatsumi was staying. SATO had a Japanese guest who needed to change his Philippine pesos to Japanese yen since he was going back to Japan and it was Tatsumi whom SATO saw at the coffee shop and whom he requested to make the currency exchange. Tatsumi was subsequently invited by a Mr. Mitamura to SATO's table where there were many Japanese. Sato left ahead for the airport leaving Tatsumi and Mitamura in conversion. When SATO saw Tatsumi again it was at the Southern Police District headquarters that same day being arrested for illegal possession of marijuana. He talked to the policemen and requested for an interpreter for Nagao since he cannot understand and speak English well. He found out Nagao had promised to pay the policemen $100,000 already but he was not able to put up the amount. Anyway, he went to the Holiday Inn and there discovered that Nagao had no more money and they talked about the hotel accommodation and other expenses starting the following day. Nagao tried and was able to speak over the phone with Mr. Nagao in Japan who asked him to explain what happened. From Holiday Inn they transferred to Intercontinental Hotel where Nagao was able to check in without his passport as SATO brought him an accommodation request from El Sol travel agency. While they were at the Intercontinental Hotel there was no reason Nagao could not leave the hotel as he was always free to leave it. They also went to Maalicaya Sauna Bath where they each had separate rooms. When he was arrested at the bank with his co-accused his watch, his wallet and his money totaling around P900.00 were taken by the policemen including his necklace and gold bracelet. They also boxed him. During the investigation they let him lie down on the table with his hands handcuffed and, while his face was covered with cloth, they poured water on it. Since he was afraid of what the policemen would do to him he just signed the statement. He did not even know the lawyer Bienvenido de los Reyes who was supposed to assist him during the investigation. He was not allowed to read the statement before he signed it. From Intercontinental Hotel they transferred to Virra condominium. He brought Tatsumi there because he requested him to look for a cheaper hotel. On cross-examination SATO disclosed that the Japanese Mitamura whom he met for the first time on May 2, 1986, informed him that a Japanese was arrested by the police for possessing marijuana and that when he arrived at the police headquarters he found out it was Nagao who was the one arrested. 8 The trial court ruled that the accused-appellants were guilty as charged because they deprived the offended party, Tatsumi Nagao, of his liberty for the purpose of extorting ransom from him. It said: It must be noted that during all this time, from the evening of May 2 until the arrest of the accused in the afternoon of May 12, it cannot be denied that the accused were always with Tatsumi, singly or both of them, at his hotel room and never losing sight of him. As a matter of fact, the only instance he was ever allowed to go out on his own was at the Intercontinental Hotel when he accompanied a girl out of the hotel to send then the accused were likewise downstairs at the hotel that Tatsumi thought he was only being tested by the accused whether he would escape. Besides, we have to consider that as far as Tatsumi Nagao was concerned he was in a foreign country with no relatives nor close friends. He could not speak or understand any Philippine Language. On top of this, he had no more money as this was taken from him by the police and, worse, his passport was being held by the accused thus destroying any hope of escape from them. Even if he did escape, where would he go without any money or passport and how would he be able to communicate with people since he could not speak English or tagalog? Moreover, what was foremost in his mind was that he was merely on a temporary leash (sic) from the police who were poised arrest him anytime he reneged on his alleged promise to pay. This would mean at least six years imprisonment not to mention ignominy he would cause on his person and the consequent scandal since he is a Buddhist priest. During all this time that he was with accused he knew that the only way he could prevent any further restraint on his person was to pay the accused from the remittance of his father in Japan.

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


That is why, even the accused were not armed and did not physically restrain his movements, all these circumstances taken together created in Tatsumi Nagao such fear which actually restrained him from doing what he freely wanted to do and resulted in a deprivation of his liberty. In other words, while there was no money to give to the accused he was stuck with them. The Court does not believe the allegation of the accused that they were not demanding any money from Tatsumi Nagao for why would they, who only came to know Tatsumi Nagao on May 2, stick to him like a leech that date until they were arrested on May 12? It could not have been being simply charitable since it would have been more logical to take Nagao temporarily into their homes to avoid more expenses if their intention was really only to help their fellow countryman. What was then the purpose in demanding for the money? The accused suggest that it was for the purpose of reimbursing them for the expenses they had incurred in accommodating Tatsumi Nagao in the hotels and other places. Even if the purpose of the deprivation of Liberty of Tatsumi Nagao alleged by the defense be accepted that is, to compel payment for the expenses incurred by the accused under Article 267 of the Revised Penal Code, as amended by Republic Act No. 1084, the offense is still kidnapping for ransom. Under American rulings, "ransom" has been held to mean in its ordinary sense as "money," price or reconsideration paid or demanded by for redemption of a captured person or persons, a payment that releases from captivity' (See 75 C.J. 458; 36 Words and Phrases, 102; Keith vs. State, 163, So. 136 120 Fla. 487). Since the accused in this case demanded and received money as a requisite for releasing Tatsumi Nagao from their hold, whatever other motive may have impelled them to do so, the money is still "ransom" under the law. 9 On 22 July 1986, Atty. Arroyo filed with this Court his Withdrawal of Appearance as counsel for the appellant Maida Tomio. 10 the law firm of Atienza, Tabora, Del Rosario and Castillo then entered its appearance for the latter. On 18 August 1986, before they could file their Brief, appellants, through another lawyer, Atty. Dominador R. Sta. Maria, Jr., filed with this Court a petition for habeas corpus, 11 which was docketed as G.R. No. 75576. They allege therein that the decision of the court below in Criminal Case No. 86-46055, subject of G.R. No. 74630, is "void and illegal" because, among other things, before being investigated, they were tortured, threatened and deprived of their constitutional rights to due process and equal protection of the laws; moreover, aside from the fact that no preliminary investigation was conducted, the complainant's father influenced the Judge directly making the latter's decision "partial, bias (sic) and prejudiced," and the trial court lacked jurisdiction over the offense charged as it was committed at the Holiday Inn Hotel in Roxas Boulevard, Pasay City, not in Manila. In the resolution of 19 August 1986, 12 the Court noted that the questions raised in the petition are also the subject of the appeal in G.R. No. 74630; consequently, the former is but a duplication of the latter which is awaiting the filing of briefs. However, without giving due course to said petition, it required respondents to comment thereon. In the meantime, specifically on 29 August 1986, appellant Tagahiro Nakajima filed his Brief in G.R. No. 74630 13 wherein he ascribes to the trial court the commission of the following errors: I ... IN CONVICTING THE ACCUSED OF THE CRIME OF KIDNAPPING; II ... IN FINDING THAT FROM THE EVENING OF MAY 2 TO MAY 12, THE ACCUSED WAS ALWAYS WITH NAGAO; III ... IN CONCLUDING THAT ESCAPE FOR TATSUMI NAGAO WAS IMPOSSIBLE BECAUSE HE IS IN A FOREIGN COUNTRY WITH NO CLOSE RELATIVES AND FRIENDS, BECAUSE HE COULD NOT EVEN SPEAK OR UNDERSTAND ENGLISH WELL OR UNDERSTAND ANY PHILIPPINE LANGUAGE, AND BECAUSE HE HAD NO MONEY AND PASSPORT, WITH NOWHERE TO GO; IV ... IN FINDING THAT THE ACCUSED HELD THE PASSPORT OF TATSUMI NAGAO; V ... IN CONCLUDING THAT IT WOULD HAVE BEEN MORE LOGICAL IF THEY TOOK NAGAO TO THEIR OWN HOUSES; VI ... IN CONCLUDING THAT THE ACCUSED DEMANDED FOR RANSOM: and VII ... IN FINDING THAT THE ACCUSED DEMANDED RECEIVED MONEY AS PREREQUISITE FOR RELEASING NAGAO. By way of an additional assigned error, which is unnumbered, but which he claims to invoke for the first time, he alleges the trial court has no jurisdiction over the crime charged because it was not committed in Manila; if it were committed the Holiday Inn Hotel, which is not located in Manila but Pasay City, it is the proper court of the latter city which has jurisdiction over it.

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


Upon the other hand, appellant Tomio Maeda, through counsel, filed his Brief 14on 18 October 1986. He contends that: I THE TRIAL COURT ERRED IN ITS HURRIED AND RAILROADED DISPOSITION OF THE CASE OF THE ACCUSED TOMIO MAEDA AND TAGAHIRO NAKAJIMA WHOSE RIGHTS TO DUE PROCESS AND FAIR AND IMPARTIAL PUBLIC TRIAL WERE DENIED. II THE TRIAL COURT ERRED IN COMPLETELY DISREGARDING THE POSITIVE AND CATEGORICAL TESTIMONIES OF THE ACCUSED TOMIO MAEDA AND TAGAHIRO NAKAJIMATHEY DID NOT KIDNAP OR DETAIN COMPLAINANT NAGAO NOR DID THEY DEMAND MONEY FOR HIS RELEASE. III THE TRIAL COURT ERRED IN FINDING THAT ALL THE ELEMENTS OF KIDNAPPING WITH RANSOM WERE PRESENT NOTWITHSTANDING THE FACT THAT THE EVIDENCE PRESENTED BY THE PROSECUTION WERE GROSSLY INSUFFICIENT TO ESTABLISH THE EXISTENCE OF THE ALLEGED OFFENSE. IV THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSE TOMIO MAEDA AND TAGAHIRO NAKAJIMA ON THE GROUND THAT THEIR GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT. On 27 November 1986, the Plaintiff-Appellee, through the Office of the Solicitor General, filed a motion for leave to file a consolidated Appellee's Brief, 15 which the court granted in the resolution of 2 December 1986. 16 Then, on 4 December 1986, the Office of the Solicitor General filed a Comment for the respondents in G.R. No. 75578 17 asserting therein that considering that petitioners (accusedappellants) perfected their appeal from the challenged decision, they cannot avail of the writ of habeas corpus since the main purpose of the latter is to determine whether or not a petitioner is legally detained. 18 The issues then in the petition should threshed out in the appeal. In the resolution of 29 January 1987, 19 We dismissed the petition for habeas corpus on the ground that, per Section 4 of Rule 102 of the Rules of Court, where the commitment is pursuant to a judgment of conviction, the writ of habeas corpus will not lie. We further said: On 14 April 1987, the Office of the Solicitor General filed Appellee's Brief in G.R. No. 74630 wherein it prays that this Court affirm the judgment of conviction but reduce the penalty to reclusion perpetua pursuant to the new Constitution. 23 The assigned errors of both appellants in G.R. No. 74630 boil down to the following issues: 1) Jurisdiction, which, as admitted by appellant Nakajima, is raised for the first time; 2) Denial of due process, as raised by appellant Tomio Maeda; and 3) Sufficiency of the evidence for the prosecution prove the crime charged. I There is no merit in the claim of lack of jurisdiction. From totality of the evidence presented by both parties, the conclusion is inescapable that during the period from 2 to 12 May 1986, the complainant was brought to or taken from different places by the appellants. More specifically, on 2 May 1986, the day when they made their initial, but crucial move on the target, the complainant (hereinafter referred to as Mr. Nagao), appellants, through the In the present case, the petitioners have been found guilty beyond reasonable doubt of kidnapping with ransom. They were accordingly sentenced and are now suffering imprisonment by virtue thereof. Dismissal of the petition is thus warranted, for their assertion that they are being illegally deprived of freedom is without support in law. Moreover, considering that the substance of the issues under consideration is closely interrelated or shows a "parallelism" to the errors allegedly incurred by the trial court and assigned by petitioners in their briefs filed in G.R. No. 74630, the Court agrees with the submission of the Solicitor General that the matters in controversy should be resolved in G.R. No. 74630. This is in conformity with the settled rule that "when a court has jurisdiction of the offense charged and the person of the accused, its judgment, order or decree is valid and is not subject to collateral attack by habeas corpus, for this cannot be made to perform the function of a writ of error, and this holds true even if the judgment, order or decree was erroneous." (Sotto vs. Director of Prisons, 5 SCRA 293, citing Vda. de Talavera vs. Superintendent and Warden of the Correcional (sic) Institution, 67 Phil. 538). Unsatisfied with the said Resolution, petitioners filed on 17 March 1987 a motion for its reconsideration, 20 focusing on the issue of lack of jurisdiction on the part of the trial court, which a Comment was filed by the Office of the Solicitor General on 10 April 1987. 21 Thereafter, petitioners filed a reply the comment.
22

This motion remains unresolved.

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


overt act of accused Tomio Maeda alias Sato Toshio and another Japanese, brought complainant "some other places in Manila" 24 after they succeeded in getting his trust and confidence, following a conversation over lunch in a coffee shop at Holiday Inn Hotel. The essential ingredients of the crime charged were thus committed in various places. The case can, therefore, be filed with the appropriate court in any of the places where the complainant was brought to by appellants in the pursuit of or in connection with the crime charged. Section 15 of Rule 110 of the Rules of Court provides that subject to existing laws, in all criminal prosecutions, action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place. 25 Moreover, in the proceedings below, there was not even the slightest suggestion from the appellants to express their doubts as to the jurisdiction of the court over the case. They did not present any evidence to show that all of the acts involved in or related to the offense charged took place outside Manila. On the contrary, from their arraignment until the promulgation of the decision, they unequivocally recognized and then yielded to the trial court's jurisdiction over their persons and the offense charged. They voluntarily expressed their readiness to be arraigned, 26 as in fact they were, abandoning in effect their urgent motion for reinvestigation. They took very active part in the trial by extensively and exhaustively cross-examining the witnesses for the prosecution, testifying for themselves in the most detailed manner as possible to conform with the strategy of their counsel, and allowing themselves to be cross-examined by the prosecuting fiscal. There can be no doubt that such active participation was motivated by one desire and was riveted to one goal: a judgment of acquittal on the merits, which necessarily carried with it an unqualified invocation of the jurisdiction and authority of the court. Settled is the rule that a party who voluntarily submitted his cause before a trial court, actively participated in the hearings therein, or invoked its jurisdiction, may not be heard to question its jurisdiction. 27 It would be placing a premium on bad faith and yielding to attempts to make a mockery of the judicial process if a party would be permitted to question the very power and authority which he invokes for his own benefit or advantage once he fails to obtain it. II Anent the denial of due process, the main grievance of appellant Tomio Maeda focuses on the alleged "railroaded disposition of the case." The filing of the case pursuant to General Order No. 39, which mandates that it should be disposed of within twenty-four (24) hours after filing by the arresting officer, is inconsistent with the need to make a thorough review assessment of the facts, considering the gravity of the imposable penalty. He further claims that they were tortured and forced to sign statements in the absence of their lawyer, and that the trial on the merits was an example of "justice in haste, justice denied." We are not impressed by the plea. In the first place, the statements they made during custodial interrogation were not taken into account against them. On the contrary, the trial court rejected such statements in toto and deplored the failure of the police to comply with the procedure prescribed by this Court in making an arrest and in conducting a custodial investigation. Said the trial court: At the outset, it may not be amiss to immediately point out in the case of Morales vs. Ponce Enrile, 121 SCRA 638, and reiterated in the more recent case of People vs. Galit, G.R. No. 51770, March 20, 1985, 28 the Honorable Supreme Court laid down the correct procedure for peace officers to follow when making an arrest and in conducting custodial investigation, thus: 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and counsel, and that any statement he might make could be use against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by most expedient means by telephone if possible or by letter messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition of either the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. The Court notes in this case that there was not even an attempt on the part of the police investigators to allow or give a chance to the accused to be assisted by a counsel of their own choice during the custodial investigation. When, indeed a lawyer was provided the accused he turned out to be, after all, a team member of the same police force investigating the accused. When the accused finally signed their respective statements it was already in the early morning of the following day when the said lawyer who was supposed to assist them was no longer around. Even the waiver of the accused Yamada of his right to counsel has not been shown to have been assisted by counsel. The Court therefore doubts the voluntariness of the statements of the accused (Exhs. "C" and "K"). Hence, the same must be rejected in toto. In the second place, while it may be true that the trial lasted only for a few days and the decision was promulgated on the twelfth day after the filing of the information, there is nothing on record that may cast any doubt on the impartiality and neutrality of the

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


judge or on the fairness of his decision which, as We observe, manifests a careful and thorough analysis of the evidence. Appellants made no protest in the court below as to the manner the trial was conducted. After they completed their testimonies and offered their Exhibit "1," their counsel announced that "we are respectfully submitting our case for decision of this Honorable Court." 29 They did not even ask for time to submit a memorandum to aid the court in appreciating the evidence, if indeed the facts and the issues were complicated. They cannot now be heard to complain that it hastily decided the case, or that it did not make a thorough review and assessment of the evidence. In the third place, all the requisites of due process are present in this case, to wit: (a) a court or tribunal clothed with judicial power to hear and determine the matter before it; (b) jurisdiction lawfully acquired by it over the person of the appellants and over the offense; (c) the appellants were given an opportunity to be heard; and (d) judgment was rendered upon lawful hearing. 30 In People vs. Castillo, et al., 31 We ruled that if an accused been proceeded against under an orderly process of law, and only punished after inquiry or investigation upon notice to him, with opportunity to be heard, and a judgment rendered within the authority of the constitutional law, then he has had due process. In the instant case, as stated in the discussion above on jurisdiction, the accused-appellants actively participated in hearing of the case before the trial court and had full an unhampered opportunity to cross-examine the witnesses for the prosecution and to present their own evidence. That General Order No. 39 directs civil courts to dispose the case within twenty-four (24) hours after its filing by the arresting officer, considering that the offended party is a tourist, does not detract from the above conclusion that appellants we not deprived of due process. The requirement, which is merely directory, is not wanting in reason or purpose. The stay of tourists in the country is limited in duration. Tourism is a major dollar-earning industry which the Government has been to promote. Corollarily, it must have to adopt policies to attract tourists and to insure their safety and security while they are in the country. Special laws bearing upon procedure, with the end in view of expediting the hearings and disposition of criminal cases where tourists are the offended parties, may be validly enacted provided that there is substantial compliance procedural due process and non-impairment of substantive due process. III The third issue requires a determination as to whether or the prosecution has established beyond reasonable doubt the elements of the offense charged. Appellants contend that it has not, for Mr. Nagao was not restrained of his liberty; he was free and could have easily escaped. As to the ransom, appellant Tagahiro Nakajima asserts that: The money remitted by Nagao's fatter was for the payment of his son's hotel bills, and not for ransom purposes (p. 96, tsn., May 21, 1986). Further Nagao's father testified that "That reason why I remitted this money because I want to know whether my son can get this money and to know the whereabout of my son, sir."(p. 107, tan., May 21, 1986). 32 However, appellant Tomio Maeda has a different version. According to him, it was in payment of the sum which they advanced to the police for and in behalf of Mr. Nagao to secure the latter's release, and the amount spent for hotel accommodations and additional expenses they incurred in his behalf. Otherwise stated: ... a simple contract of loan existed between complainant and the accused whereby the complainant incurred a legal as well as moral obligation to pay for the expenses advanced by the 2 accused in his favor. This is another reason why complainant stayed in the company of the accused. In the words of the complainant himself, he deemed it "an obligation upon himself to pay for the expenses" advanced by the 2 accused in accommodating him (tsn, May 21, 1986, p. 24-25). Thus, there was no force or compulsion in exacting payment from the accused. There was no demand, as there was no need for it. The complainant knew that he had an obligation and that he had to comply with it. The money to be paid was rightfully due to the 2 accused. It was nothing more than a payment for a debt in money. 33 The trial court found otherwise. Its findings were based on its appreciation of the evidence for the parties which, in turn, revolved upon the credibility of the witnesses. It is well-settled that the conclusion of the trial court on the credibility of witnesses is entitled to great weight and respect; and, unless there are substantial facts and circumstances that have been overlooked, which if considered might effect the result of the case, such findings are generally not disturbed on appeal. The reason for this is that the trial court is in a better position to observe the deportment and demeanor of witnesses to determine the veracity of their answers; 34 it has the inestimable advantage of observing the detailed demeanor of the witnesses. 35 We find no reason to depart from this rule. A painstaking review of the evidence in this case clearly discloses the correctness of such findings. The evidence for the prosecution has established beyond reasonable doubt that appellants, together with their coconspirators, had an elaborate and carefully designed plan to kidnap Mr. Nagao in order to obtain ransom from him. The plan was effectively carried out at lunchtime on 2 May 1986 at the coffee shop in Holiday Inn Hotel when appellant Tomio Maeda alia Sato Toshio approached Mr. Nagao to find out if the latter had Japanese yen to be converted to Philippine pesos because a friend was to leave for Japan and needed the yen; Tomio succeeded in having P1,100.00 exchanged for 10,000.00 yen belonging to Mr. Nagao. Then, another Japanese companion of Tomio, one Mr. Mitamura, invited complainant to join them at their table. Tomio left them and proceeded to the airport to send off his friend who was to depart for Japan. 36 By his addition admissions on crossexamination, he clearly revealed, though rather unwittingly, how the plot would be pursued with the assistance of law enforcement authorities. As early as 3:00 o'clock in the afternoon of that day, Mr. Mitamura called Tomio by telephone to inform him that a Japanese was arrested for having marijuana in his

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


possession, although the name of the latter was not mentioned. Without even being informed as to where the arrested party was brought, Tomio proceeded to the Southern Police District and, upon arriving there at 4:00 o'clock, merely informed the police that a Japanese has marijuana in his possession. He could not, however, mention the name of said Japanese. 37 It should be stressed that at that time, Mr. Nagao had not yet been "arrested" by five (5) policemen of the Southern Police District for possession of a pack of cigarettes allegedly containing marijuana. He was arrested after seven o'clock that evening following a dinner at Leo's Restaurant. This visit then of Tomio to the Southern Police District must have had something to do with a conspiratorial arrangement with some personnel of said office, more specifically the five policemen who, at past 7:00 o'clock that evening, pounced on Mr. Nagao and "arrested" him for alleged possession of marijuana. From the Southern Police District, Tomio called Mitamura, who was in the complainant's room at Holiday Inn Hotel; Mitamura told him that they were to take their dinner at Leo's Restaurant. They did in fact have dinner at Leo's Restaurant, 38 although on direct examination, he said that after the meeting at lunchtime, he saw complainant again only at the Southern Police District. 39 At Leo's Restaurant, Tomio claims: a ... Later on we saw one Japanese holding marijuana inside the restaurant and then Mr. Mitamura requested to call or contact the police in order that this Japanese who was in possession of marijuana be arrested. q So you were informed by Mitamura to contact the southern police district (sic) that there was this two (sic) Japanese inside the Leo's restaurant who was in possession marijuana cigarette (sic)? a Yes, sir. q These two Japanese were left at Leo's restaurant and one Japanese was in possession of marijuana cigarettes? a Yes, sir. q And did this police officer arrested (sic) these (sic) Japanese who is (sic) in possession of marijuana? a Yes, sir. q And who made this plan? a What plan, sir? q About you and the southern police. At about 7:00 o'clock were (sic) this Japanese holding marijuana was arrested? a That was not a plan, sir. I got only the information fro Mr. Mitamura that some Japanese were in possession of marijuana. q You just gather (sic) this information from Mr. Mitamura but you really inform,(sic) the police? a Yes, sir. q So that is the plan of Mr. Mitamura? a I think so, sir. 40 Other than Mr. Nagao, no other Japanese was "arrested" for alleged possession of marijuana at Leo's restaurant in the evening of 2 May 1986, after a pack of cigarettes was place inside his left shirt pocket by, according to him, a Japanese. After complainant was "arrested" by the five policemen from the Southern Police District and brought to the headquarters, Tomio showed up, talked to Mr. Nagao and the policemen an recommended the assistance of an interpreter since, according to him, Mr. Nagao cannot understand and speak English well. 41 The interpreter he had in mind was his co-accused Tagahiro Nakajima, who he forthwith called; the latter lost no time in coming to the Southern Police District to act as Mr. Nagao's interpreter. 42 Mr. Nakajima offered additional information not disclosed earlier, i.e., the policemen "found" in the possession of complainant, not just one pack of cigarettes containing 15 stick of marijuana, but a smuggling belt. 43 At the Southern Police District, appellants informed Mr. Nagao that if found guilty of possession of marijuana he can be sentenced anywhere from 6 to 12 years of imprisonment. The two then proposed that he should give money to the policemen, who, they claimed, demanded U.S.$100,000.00. They informed him that if he will not give the money, his name and his case would be published in the newspapers because, at that time, there were some newspaper reporters outside. Mr. Nagao, however, did not have the money; he proposed to contact his parents. However, after they talked to the police in another room, they informed him that they had advanced the payment to the police who thereafter released him. The appellants and a policeman then brought him to his room at the Holiday Inn Hotel.
44

The foregoing scenarios were part of the script. With the obvious connivance of the police, they put the pressure on the complainant by demanding, allegedly for and in consideration of his release, the amount aforestated. Under the circumstances, with the threat of adverse publicity and imprisonment, it was easy to work on him. To show that they commiserated with him, they made it appear that they advanced the money to the police. We are, however, convinced that the accused-appellants never advanced the money. That is why they stuck to the complainant like "a leech," as vividly described by the trial court, after he was

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


eventually "released" by the police. There is no doubt in Our mind that during the period from 3 May 1986 until the accusedappellants were arrested on 12 May 1986, complainant was moved from one hotel to another by the appellants, effectively depriving him of his liberty. As correctly observed by the Solicitor General, while it may be conceded that complainant had the freedom of locomotion, he "did not have the freedom to leave the hotel premises at will and go wherever he pleased." 45 To keep him within their control, appellant Tagahiro Nakajima, who is a businessman and a resident of 101 Peter's Street, BF Homes, Paraaque, Metro Manila, had to abandon his business and his family to be with Mr. Nagao. Thus, as he admitted upon question by the court, he was, from 3 to 12 May 1986, with the complainant at Holiday Inn Hotel, Intercontinental Hotel, Philippine Village Hotel and Virra Condominium. He slept there, not in his residence. 46 The suite (73) which they occupied Virra Condominium is owned by his co-accused Tomio Maeda. 47 Moreover, appellants never refuted the testimony of Nagao made during cross-examination, that at the hotel they told him that if he did not pay them the amount demanded the policemen, plus the hotel bills and other expenses, would do something to him; they kept on telling him that if he did not pay them, the policemen would arrest him. 48 We are not persuaded by the theory of the appellants that money involved was not ransom money, but rather payment of hotel bills (as claimed by Tagahiro Nakajima) or for reimbursement of the sum they advanced to pay the policemen and for hotel accommodations and additional expenses spent for complainant (as claimed by Tomio Maeda). In the first place, none of them claimed that either or both of them advanced the money to the police. As a matter of fact, Tagahiro Nakajima testified that he saw the complainant counting the money: q Awhile (sic) ago you stated that he even offered money the police? a Yes, sir. q How much? a When I was reaching (sic) to them, they are (sic) writing papers, after that I think he was counting dollar and he told us one hundred thousand US dollar, but suring (sic) that time I was doubtful how come that big amount he cannot pay the (sic) amount of (sic) One Hundred Thousand US dollar (sic). q Now, after that, what happened next? a After that he told me that he will just borrow from his friend One Hundred Thousand US dollar. I told him that is impossible and that is too much, and I also told him better talk to your father to send money then after that he called up to Japan (sic). q Now, was he released by the police? a Yes, sir. 49 Upon the other hand, as far as could be gathered from the testimony of Mr. Tomio Maeda on direct examination, the money given to the police did not also come from him. Thus: q Did you know as to how much money did he promised (sic) to the police? a Yes, sir. q How much? a One Hundred Thousand US. Dollar (sic) ($100,000.00), sir. q And do you know if he was able to put up that amount to the police? a No, sir. q Now, from the headquarter (sic), where did you go? a At Holiday Inn Hotel, sir. q And upon reaching Holiday Inn Hotel, what happened or what did you do? a Mr. Nagao don't (sic) have any money anymore so we are talking (sic) about hotel accommodation and other expenses starting the next day and he is (sic) also trying to contact his friend, sir. 50 What then was the money they advanced to the police? Nothing. However, they succeeded in making it appear to Mr. Nagao, after they came out of the room at the Southern Police District, that they advanced the amount to the police, for which reason he was released. This was part of the stratagem to give a semblance of legality to the demand for ransom. Now then, if indeed the appellants only wanted reimbursement for the money "paid" to the police, and that they were merely motivated by a desire to help a fellow Japanese in distress, why did they have to bring him from one expensive hotel to the other, thereby incurring more expenses? Why did they not bring him to their homes, as the trial court asked, if only to show their genuine concern for him? Even granting for the sake of argument that, in effect, there was created a simple loan contract between appellants and Mr. Nagao, as asserted by appellant Tomio Maeda, the deprivation of the former's liberty until the amount shall have been fully "paid" to them, is still kidnapping or illegal detention for ransom. In People vs. Akiran, et al., 51 this Court, through Justice J.P. Bengzon, ruled that even if the kidnapping were to compel the victim to fulfill his promise of defraying the hospital expenses of a brother of one of the accused, there is still kidnapping for ransom, since if that were indeed the purpose, the accused need not kidnap the victim.

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


Elaborating thereon, the Court stated that the last paragraph of Article 267 of the Revised Penal Code, as amended by R.A. No. 1084, which took effect on 15 June 1954, which increases the penalty for kidnapping and serious illegal detention if it is committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances mentioned in said Article were present in the commission of the offense is: ... derived from statutes of the United States, particularly the Lindbergh Law. Thus, American jurisprudence thereon has persuasive application. "Ransom" under American rulings, as used in statutes making kidnapping with intent to hold for ransom a capital offense, has been held to mean in its ordinary sense as "money, price, or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity." 52 Since the accused in this case demanded and received money as a requisite for releasing a person from captivity, whatever other motive may have impelled them to do so, the money is still ransom under the law.
53

10

scalawags in our law enforcement agencies who may use their uniforms and their lawfully issued weapons as convenient shields or instruments for the perpetration of their evil deeds. Accordingly, We direct the Philippine National Police to conduct a thorough investigation, if none has been done so far, into the involvement of the five policemen of the Southern Police District and, should the evidence warrant, file the appropriate criminal and administrative cases against them. As regards Mr. Mitamura, if he is still in the Philippines, efforts must be exerted by the Bureau of Immigration and Deportation, in coordination with the National Bureau of Investigation, to have him investigated and prosecuted, should the evidence warrant. No alien should be allowed to abuse Philippine hospitality and make our country a happy hunting ground for his criminal activities. WHEREFORE, judgment is hereby rendered: 1. In G.R. No. 74630, AFFIRMING, subject to the above provision of Section 19(1) of Article III of the 1987 Constitution, the decision of the trial court in Criminal Case No. 86-45055, and 2. In G.R. No. 75576, DENYING, for lack of merit, the motion to reconsider the resolution of 20 January 1987. Costs against appellants. SO ORDERED. G.R. No. 86454 October 18, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARMEN LIM @ "MAMENG LIM", defendant-appellant. GUTIERREZ, JR., J.: This is an appeal from the decision of the Regional Trial Court of Masbate, Branch 46, the dispositive portion of which reads: xxx xxx xxx WHEREFORE, judgment is hereby rendered finding the accused Carmen Lim guilty beyond reasonable doubt of the crime charged and sentencing her to reclusion perpetua and to pay the costs. (Rollo, p. 22) The information filed against the accused and John Doe reads: xxx xxx xxx That on or about July 1, 1986, in the afternoon thereof, at Zurbito Street, Municipality of Masbate, Province of Masbate, Philippines, within the jurisdiction of this court, the said accused who are private persons conspired and mutually helped each other, did then and there willfully, unlawfully and feloniously kidnap Aida and Avelyn both minors and surnamed Villanueva; separating them from their parental care; Aida Villanueva was detained for about twenty (20) days in the house of Carmen Lim alias "Mameng" while Avelyn

The doctrine in the Akiran case is applicable here. Thus, even if the theory of Tomio is correct, it was not necessary for him and his co-accused Nakajima to deprive the complainant of his liberty to compel him to pay the alleged loan. We thus hold that upon the evidence adduced by the prosecution, the guilt of the accused for the crime charged was proven beyond reasonable doubt and the trial court committed no error in convicting them accordingly. In view, however, of Section 19(1) of Article III of the 1987 Constitution which abolishes the death penalty and provides that any death penalty already imposed shall be reduced to reclusion perpetua, the penalty imposed by the trial court is deemed reduced to reclusion perpetua. In the light of the foregoing, the motion of appellants dated 16 March 1987 to reconsider Our resolution of 29 January 1987 in G.R. No. 75576 must also be Denied for lack of merit. This should not, however, end the story of Mr. Nagao. As adverted to earlier, other parties, namely, Mr. Mitamura, a Japanese national, and the five policemen from the Southern Police District, could be deeply involved in the conspiracy to kidnap him for ransom. Our examination of the records fails to show that Mr. Mitamura and the policemen were investigated or prosecuted in connection with this case. This Court would be remiss in its duty if it were to close its eyes on this matter, more specifically on the alleged involvement of the policemen. Policemen are supposed to enforce the law, protect the people, and maintain peace and order. At the people's expense, they don the uniform of authority and are allowed to carry the instruments of legal violence. As such, they are bound to faithfully adhere to the Constitutional directive to be at all times accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. 54 When they fail in that sacred duty and become the lawbreakers, they have no business staying a minute longer in their offices and wearing their uniforms. They deserve nothing but the severest criminal and administrative penalties the law provides. The people's taxes should never be used to maintain and support

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


Villanueva was detained and brought to Cebu City by the co-accused thereby depriving the two, Aida and Avelyn of their personal liberties. (Records, p.1) The prosecution evidence upon which the trial court based its finding of guilt beyond reasonable doubt is summarized as follows: xxx xxx xxx That in the morning of July 1, 1986, Aida Villanueva and her younger sister Avelyn Villanueva, 10 and 7 years old, respectively, were sent on an errand by their father Charlito (should be Charito) Villanueva to buy rice in Masbate, Masbate. The Villanuevas lived in Mobo, a neighboring town of the capital of the province. Upon their arrival at the poblacion of the capital town of Masbate at around 9:00 o'clock in the morning, Aida and Avelyn went to the pier, staying there up to 12:00 noon, to meet their mother whom they thought would arrive by boat from Manila. They left the pier when their mother did not arrive and went to Helen Theatre on Zurbito Street, Masbate, Masbate, to see a picture. At around 2:00 o'clock in the afternoon of the same day while they were in front of the Helen Theatre, they were called by the accused Carmen Lim, in a loud voice. "Come here Nene" and asked them to go to her house just infront of the moviehouse. Aida and Avelyn went to the house of the accused and got inside passing through the front door. After a brief conversation with the two children, the accused gave Aida and Avelyn rice and kangkong for lunch. After they had finished eating, Aida was told by the accused to take a bath. The accused gave Aida a dress to wear. From July 1, 1986 to July 15, 1986, Aida Villanueva was detained in the house of the accused doing household chores such as cleaning the kitchen, scrubbing the floor, washing the plates including removing lice from the head of the accused and fanning her. Avelyn, the younger sister of Aida, was brought by Carmen's mother (should be sister) in Cebu on the same day they arrived in the house of the accused. On July 15, 1986, Charito Villanueva, father of the two minor children, found his daughter Aida in the house of the accused. He asked the accused to let Aida go home with him, but the accused refused. Charito came back to the house of the accused the following day, July 16, 1986, accompanied this time by Sgt. Antonio Ariate of the 266th PC Company at Camp Bonny Serrano, Masbate, Masbate, who had with him an armalite. After Identifying himself to the accused, the soldier told the accused that he was taking Aida with him. Without resistance but uttering slanderous remarks, the accused released Aida to Sgt. Ariate. Charito Villanueva and his daughter Aida were brought by Sgt. Ariate to the 266th PC Company Headquarters where the complaint of Charito was recorded in the blotter by CIC Vincent Elliot Vasquez of the I & I Section. (Rollo, p. 12) The appellant's version, on the other hand, is summarized in her brief as follows: xxx xxx xxx On or about 1:30 in the afternoon of I July 1986, the sisters went to Helen Theater, located along Zurbito St., Masbate, Masbate, to look at the pictures displayed outside. Helen Theater is located across the store and residence of the appellant. The sisters then proceeded to appellant's store which she was tending at that time. Appellant noticed the sisters and caged them over. She inquired from the sisters as to the whereabouts of their parents as they were apparently alone. The sisters replied that their parents had separated and that their mother had gone to Manila, and that their father was in Buenavista, Uson, Masbate. The sisters claimed that they were driven away by their father and that they were not given any food to eat. Taking pity on the sisters, appellant gave the sisters food and allowed them to take a bath. Concerned for their safety, appellant offered to shelter the sisters. As the younger sister of appellant was at that time visiting appellant, appellant proposed to Aida to let Avelyn accompany appellant's sister to the latter's home. Aida agreed, on condition that she and Avelyn could meet every week. Aida stayed in appellant's residence for about two (2) weeks. To help in the house, Aida would go to the market to buy bread, fish and salt for appellant's household. Aida also helped watch over appellant's store from time to time. On or about 9:00 a.m. of 15 July 1986, Charito Villanueva, the complainant and father of the sisters, went to appellant's store. Charito introduced himself to appellant as the father of the two sisters and informed appellant that he was going to bring the sisters home. Charito talked to Aida and asked her to go home with him. Aida, however, refused to go with her father. As a result, Charito left. When asked by appellant why she refused to go with her father, Aida replied that she was afraid that her father would beat her up. On 16 July 1986, Charito returned to appellant's store, this time accompanied by Sgt. Antonio Ariate, Jr. of the Philippine Constabulary, Sgt. Ariate introduced himself to appellant. Charito again talked to Aida to convince her to go home with him. This time, Aida agreed to go home with her father. (Rollo, pp. 44-46)

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TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


The appellant raises the following assignment of errors in her appeal, to wit: I THE TRIAL COURT ERRED IN NOT DISMISSING THE CASE AGAINST THE APPELLANT DESPITE THE DESISTANCE OF THE COMPLAINANT II THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE PROSECUTION WITNESSES' TESTIMONY WHICH WERE REPLETE WITH INCONSISTENCIES AND CONTRADICTIONS III THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT DESPITE THE FACT THAT AIDA VILLANUEVA WAS NOT DETAINED BY THE APPELLANT IV THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT DESPITE THE FACT THAT APPELLANT HAD NO MOTIVE TO DETAIN AIDA AND AVELYN VILLANUEVA (Rollo, pp. 47-48) The fundamental axiom underlying a criminal prosecution is that before the accused may be convicted of any crime, his guilt must be proved beyond reasonable doubt. Thus, if there are substantial facts which were overlooked by the trial court but which could alter the results of the case in favor of the accused, then such facts should be carefully taken into account by the reviewing tribunal. (People v. Torre, G.R. No. L-44905, April 25, 1990) In the case at bar, after a careful review of the evidence adduced by the prosecution, we find the same to be insufficient to sustain a conviction. The uncorroborated testimony of the alleged kidnapped victim, Aida Villanueva, which was mainly relied upon by the trial court in convicting the appellant, was not clear and convincing enough to overcome the constitutional presumption of innocence. There is no kidnapping in this case. The two minors voluntarily entered the appellant's residence through the front entrance. The fact of detention which is an essential element in the crime charged, was not clearly established. There was no showing that there was actual confinement or restriction of the person of the offended party. (See People v. Mercado, 131 SCRA 501, 506 [1984]; US v. Cabanas, 8 Phil. 64, 67 [1907]). The appellant's residence has a store fronting the street where many customers presumably come and go. The place is busy with a movie house in front. There is no indication that Aida was locked up, physically restrained of her liberty or unable to communicate with anyone. There are other circumstances which create grave doubts in Aida's version of her two week detention. In her testimony, Aida claimed that she attempted to escape three times but she was not able to do so. (TSN, July 21, 1987, p. 34). Just how she tried to escape or why she did not succeed is not explained clearly. When Aida saw her father for the first time on July 15, 1986, she inexplicably did not shout for help or run to him but just observed him and the appellant talk for half an hour. (TSN, July 21, 1987, p. 23) The Solicitor General counters the appellant's claim stating that Aida did ask for help from her father when the latter was about to leave, but the appellant pushed her and refused to let her go with her father. (TSN, July 21, 1987, pp. 2526). The actuations of both Aida and her father are highly incredible. They are not the natural reactions of a ten-year old child who has been detained against her will for two weeks and who has tried unsuccessfully to escape three times. The fact that her father was already there was the perfect opportunity for Aida to try and get away from the appellant. She could have clung to him from the moment he came in instead of quietly observing him and the appellant talk for some time. Aida did not go with her father because the appellant allegedly told her not to go. For someone who had been detained against her will, as between her father and her detainor, Aida would have disregarded the appellant's order and would have run to her father. Neither is it believable that a father who has been desperately looking for his two minor daughters for two weeks would just calmly accept the appellant's refusal to let go of his daughter. The Court is not unaware of previous pronouncements that the testimony of a single witness, if positive and credible, is sufficient to support a conviction. (People v. Aldeguer, G.R. No. L-47991, April 3, 1990; People v. Salufrania, 159 SCRA 401, 415416 [1988]) But as discussed above, the testimony of Aida Villanueva does not inspire credibility. Well-settled is the rule that evidence to be believed, must not only proceed from the mouth of a credible witness but it must be credible itself. No better test has yet been found to measure the value of a witness than its conformity to the knowledge and common experience of mankind. (People v. Maspil, G.R. No. 85177, August 20, 1990; People v. Maribung, 149 SCRA 292, 297 [1987]) The fact of detention is also denied by the testimony of one of the prosecution witnesses. Sgt. Ariate stated that: xxx xxx xxx Q You also saw Aida Villanueva? A Yes, sir. Q Where did you see her? A By the door of her store ... going inside. (TSN, October 22, 1987, p.10) It is apparent that Aida had free access going in and out of the appellant's residence. In fact, Aida could have escaped at that

12

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


particular period of time. She was three feet away from the appellant when Sgt. Ariate saw her (TSN, October 22, 1987, p. 10) so she could have made a run for it if she really wanted to go. There is also the question of Sgt. Ariate's conflicting statements as to the answer of Aida's father about his missing daughters which was dismissed by the trial court as a minor inconsistency. In his testimony, he stated that Aida's father said that he just sent his two daughters on an errand and they were already missing (TSN, October 22, 1987, p. 9) while in his answer to the questions propounded to him he stated that Aida's father admitted that his daughter ran away. (Records, p. 15) Such conflicting statements taken together with the statement of Charito Villanueva, the father of the victim that "Aida Villanueva and Avelyn Villanueva, 10 and 6 yrs. old were (sic) left their house without his consent," (Records, p. 126) recorded in the blotter dated July 23, 1986 cast doubt on the criminal liability of the appellant. The answer of Sgt. Ariate to the questions propounded to him and the statement in the blotter corroborate the appellant's testimony that the two children ran away from home. (TSN, April 22, 1988, pp. 4-5) The unbelievable and conflicting evidence of the prosecution strengthens the version of the appellant that she took pity on the two runaway children and decided to give them food and shelter. Whether or not she treated them like unpaid servants is not in issue. What is apparent from the records is the absence of proof showing kidnapping and serious illegal detention. Another circumstance that belies the kidnapping charge is the unexplained delay in the lodging of the complaint against the appellant. An entire week passed before the complaint was lodged on July 23, 1986. (See People v. Antonio, 161 SCRA 72, 81 [1988]) The fourth circumstance present which calls for the reversal of the conviction is that there is no motive whatsoever for the appellant to kidnap the two children. The appellant is a woman of sufficient means. It is undisputed that she is the owner of a store and was the employer of two maids at the time of the incident. She did not know the two children prior to the incident. Had she wanted to hire an additional maid, she could certainly afford to hire another one without going to the extent of committing a crime as serious as kidnapping. There was no need to kidnap a minor and force her to work against her will. The appellant had everything to lose and nothing to gain if it is true that she kidnapped the two children. No motive was ever propounded by the prosecution. We are thus ushered to applying the precept that though proof of motive is not indispensable to conviction, yet a void in the evidence in this respect discloses a weakness in the case for the prosecution. (People v. Modesto, 25 SCRA 36, 46 [1968] It has also been held in People v. Zamora, 59 Phil. 568, 569, [1934]): xxx xxx xxx In the case at bar, no motive for the killing has been established, and granting that proof of particular motive for taking the life of a human being is not indispensable to conviction for homicide, the absence of such motive is nevertheless important in determining which of two conflicting theories is more likely to be true. (Emphasis supplied) And finally, the execution of the affidavit of desistance by Charito Villanueva, complainant in the kidnapping case, stating that his daughters were not detained after all by the appellant taken together with the circumstances abovementioned has the effect of exculpating the appellant from the charge of kidnapping. As held in Gomez v. Intermediate Appellate Court (135 SCRA 620, 630 [1985]): xxx xxx xxx It is conceded that the State has the sovereign right to prosecute criminal offenses under the full control of the fiscal and that the dismissal of criminal cases by the execution of an affidavit of desistance by the complainant is not looked upon with favor. However, it is also true that an affidavit of desistance may create serious doubts as to the liability of the accused. At the very least, it calls for a second hard look at the records of the case and the basis for the judgment of conviction. Jurisprudence on the effect of desistance notwithstanding, the affidavit should not be peremptorily dismissed as a useless scrap of paper. (Emphasis supplied) The instant case falls under the exception where an affidavit of desistance is given due consideration. Significantly, the father of the two girls testified in open court on November 24, 1987 that he was withdrawing the case and that his children were not detained. The prosecution had every opportunity to crossexamine or tear apart the retraction and prove that the facts were as earlier alleged. It failed to do so. The Solicitor General quotes the trial court's statement that: xxx xxx xxx If the accused thought that the evidence of the prosecution was fabricated or false, the accused could have presented her two maids as witnesses to testify to rebut said evidence. Her failure to introduce them as witnesses could only mean that the testimonies of the prosecution witnesses about the detention of Aida in her house were all true. (Rollo, p. 21) It is a well-entrenched rule in our jurisprudence that the prosecution must rely on the strength of its evidence rather than on the weakness of the defense. (People v. de Dios, G.R. No. 58174, July 6, 1990; People v. Domingo, 165 SCRA 620, 626 [1988]) In this case, the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. WHEREFORE, the judgment of the trial court is hereby REVERSED and SET ASIDE and appellant Carmen Lim is ACQUITTED of the crime charged for failure to prove her guilt beyond reasonable doubt. SO ORDERED.

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G.R. No. 102645. April 7, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO PADICA y LORICA, LESLIE GANS y MELENDRES, FLORENTINO FABRIGAS, ROMEO PRADEZ, LEONARDO MARAJAS, LEOPOLDO MARAJAS and LEON MARAJAS, JR. y RAMOS, ** accused. LEON MARAJAS, JR. y RAMOS, accusedappellant. The Solicitor General for plaintiff-appellee. Angara, Abello, Concepcion, Regala & Cruz for accused-appellant. SYLLABUS 1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; UNINHABITED PLACE; PRESENT WHERE ACCUSED DELIBERATELY CHOSE DESOLUTION OF PLACE TO PERPETRATE CRIME FAR FROM GAZE OF POTENTIAL EYEWITNESSES; APPRECIATED THOUGH NOT ALLEGED IN INFORMATION. Although the trial court and both parties herein have again passed sub silentio thereon, it is evident that the aggravating circumstance of uninhabited place was present since appellant and his co-accused obviously and deliberately chose the desolation and isolation of the sugarcane plantation to perpetrate the crime far from the gaze of potential eyewitnesses. This circumstance is underscored by the fact that they committed the crime at about 12:00 noon, a time of day when any passersby or assistance could hardly be expected in the vicinity of the locus criminis. This aggravating circumstance of despoblado should, therefore, be considered against appellant even if it was not alleged in the informations since it was duly proved. 2. ID.; ID.; ABUSE OF SUPERIOR STRENGTH; PRESENT WHERE ACCUSED DELIBERATELY RESORTED TO COLLECTIVE STRENGTH IN OVERPOWERING VICTIM'S DEFENSE. Abuse of superior strength was likewise present, for the accused deliberately resorted to their collective strength for the purpose of overpowering whatever feeble defense the poor Francis Banaga could offer. They thus insured the commission of the crime with practically no risk at all to themselves. 3. ID.; ID.; TREACHERY; PRESENT WHERE ASSAULT IS SUDDEN AND UNEXPECTED AND VICTIM DIVESTED OF OPPORTUNITY TO EFFECTIVITY RESIST OR ESCAPE. There was treachery since, under the aforestated circumstances, the victim was lured by his killers into going with them to Laguna without the slightest inkling of their nefarious design, coupled with the sudden and unexpected assault by the malefactors on the hapless victim in the isolated sugarcane plantation in Calamba, which thereby divested him of an opportunity either to effectively resist or to escape. 4. ID.; ID.; ABUSE OF SUPERIOR STRENGTH AND CRAFT ABSORBED IN TREACHERY. Under the factual features present in the commission of the crime, however, we are inclined to grant that the circumstance of superior strength should not be appreciated distinctly but should be considered as being absorbed in and by treachery, and the same is true with regard to the allegation of craft. Hence, abuse of superior strength may not be taken into account separately in this case, either as a qualifying or as an aggravating circumstance. 5. ID.; MURDER; WHERE TAKING OF VICTIM FROM ONE PLACE TO ANOTHER INCIDENTAL TO BASIC PURPOSE TO KILL CRIME IS MURDER; NOT CONVERTED TO KIDNAPPING BY DEMAND FOR RANSOM WHERE VICTIM NOT DETAINED OR DEPRIVED OF LIBERTY. We have consistently held that where the taking of the victim was incidental to the basic purpose to kill, the crime is only murder, and this is true even if, before the killing but for purposes thereof, the victim was taken from one place to another. Thus, where the evident purpose of taking the victims was to kill them, and from the acts of the accused it cannot be inferred that the latter's purpose was actually to detain or deprive the victims of their liberty, the subsequent killing of the victims constitute the crime of murder, hence the crime of kidnapping does not exist and cannot be considered as a component felony to produce a complex crime of kidnapping with murder. In fact, as we held in the aforecited case of Masilang, et al., although the accused had planned to kidnap the victim for ransom but they first killed him and it was only later that they demanded and obtained the money, such demand for ransom did not convert the crime into kidnapping since no detention or deprivation of liberty was involved, hence the crime committed was only murder. That from the beginning of their criminal venture appellant and his bothers intended to kill the victim can readily be deduced from the manner by which they swiftly and cold-bloodedly snuffed out his life once they reached the isolated sugarcane plantation in Calamba, Laguna. Furthermore, there was no evidence whatsoever to show or from which it can be inferred that from the outset the killers of the victim intended to exchange his freedom for ransom money. On the contrary, the demand for ransom appears to have arisen and was consequently made as an afterthought, as it was relayed to the victim's family very much later that afternoon after a sufficient interval for consultation and deliberation among the felons who had killed the victim around five hours earlier. 6. ID.; KIDNAPPING; ESSENTIAL ELEMENT THEREOF; CASE AT BAR. The essential element in the crime of kidnapping that the victim must have been restrained or deprived of his liberty, or that he was transported away against his will with the primary or original intent to effect that restraint, is absent in this case. The malefactors evidently had only murder in their hearts when they invited the trusting Francis Banaga to go with them to Laguna, and not to confine or detain him for any length of time or for any other purpose. 7. ID.; ID.; IMPOSABLE PENALTY RAISED TO DEATH WHERE CRIME PERPETRATED FOR RANSOM; CURTAILMENT OF FREEDOM OF MOVEMENT WITHOUT DETERMINANT INTENT AND DEPRIVATION OF LIBERTY FOR APPRECIABLE PERIOD OF TIME CONSTITUTE COERCION. Under Article 267 of the Revised Penal Code, the circumstance that the kidnapping is perpetrated for the purpose of ransom raises the imposable penalty to death. It is essential, however, that the element of deprivation or restraint of liberty of the victim be present. The fact alone that ransom money is demanded would not per se qualify the act of preventing the liberty of movement of the victim into the crime of kidnapping, unless the victim is actually restrained or deprived of his liberty for some appreciable period of time or that such restraint was the basic intent of the accused. Absent such determinant intent and duration of restraint, the

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mere curtailment of freedom of movement would at most constitute coercion. 8. REMEDIAL LAW; CRIMINAL PROCEDURE; NAME OF ACCUSED BE SUFFICIENTLY ALLEGED IN THE COMPLAINT OR INFORMATION; CONSEQUENCE OF FAILURE TO COMPLY THEREWITH; TEST OF SUFFICIENCY. The rule is that the complaint or information should sufficiently allege the name of the accused, failing which the complaint or information would be rendered invalid. The test of sufficiency is laid down in Section 7, Rule 110 of the Rules of Court, which states: "Sec. 7. Name of the accused. A complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known, or if his name cannot be discovered he must be described under a fictitious name with a statement that his true name is unknown. If in the course of the proceeding the true name of the accused is disclosed by him, or appears in some other manner to the court, the true name of the accused shall be inserted in the complaint or information and record." 9. ID.; ID.; AMENDMENT OF COMPLAINT OR INFORMATION; INSERTION OF ACCUSED'S TRUE NAME IN INFORMATION A FORMAL AMENDMENT. The subsequent amendment to insert in the information Leon Marajas, Jr.'s real name involved merely a matter of form as it did not, in any way, deprive appellant of a fair opportunity to present his defense. Moreover, the amendment neither affected nor altered the nature of the offense charged since the basic theory of the prosecution was not changed nor did it introduce new and material facts. Such an amendment is explicitly allowed under the second paragraph of Section 7, in relation to Section 14, Rule 110 of the Rules of Court, the pertinent portion of which provides that "(t)he information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused." At any rate, whatever irregularity may have attended the inclusion of appellant's name as an accused in the amended information has been waived by his subsequent appearance and entry of plea at his arraignment under said amendatory information. 10. ID.; ID.; MOTION TO QUASH; ERROR AS TO IDENTITY PROPERLY RAISED IN MOTION TO QUASH ON GROUND OF LACK OF JURISDICTION OVER ACCUSED'S PERSON; CONSEQUENCE OF FAILURE TO RAISE QUESTION OF IDENTITY. In the case at bar, there is no dispute that appellant was arraigned under the original information and that he entered thereto a plea of not guilty under the name of "Leonardo Marajas." At that juncture, appellant should have raised the error as to his identity by filing a motion to quash on the ground of lack of jurisdiction over his person, in line with the doctrine explained in People vs. Narvaes laid down as early as 1934. But, as aforestated, appellant did not do so but instead voluntarily appeared at the arraignment and pleaded not guilty thereat, albeit under the different name. Consequently, the trial court acquired jurisdiction over his person and it could have rendered a valid judgment of conviction based on the original information even without need of an amendatory information to correct appellant's name. What we stated in Narvaes is worth repeating: "x x x (w)hen the appellant was arraigned under the name of Pedro Narvaes, which is the name appearing in the information, he merely entered his plea of 'not guilty' under the said name. It was on that occasion that he should have for the first time raised the question of his identity, by filing a demurrer based on the court's lack of jurisdiction over his person, inasmuch as he was then considered as Pedro Narvaes, not Primo Narvaes. Not having filed the said demurrer, it must necessarily be understood that he renounced it and therefore he is now estopped from raising, or insisting to raise, the same question, not only in this appeal but even at the trial . . ." 11. ID.; ID.; DISCHARGE OF ACCUSED TO BE STATE WITNESS; LIES WITHIN COURT'S SOUND DISCRETION; COURT NOT REQUIRED TO BE ABSOLUTELY CERTAIN THAT ALL REQUIREMENTS FOR PROPER DISCHARGE BE PRESENT. Appellant has also clearly lost sight of the rule that the discharge of an accused to be a state witness, lies within the sound discretion of the court before whom it is sought and in the exercise of that discretion, it is not required that the court be absolutely certain that all the requirements for the proper discharge of a co-accused be present. In the case under consideration, the prosecution presented enough evidence to support its motion for the discharge of Padica. The trial court's reliance thereon and its consequent finding on the basis thereof that Padica did not appear to be the most guilty must be respected as it was in better position to evaluate such evidence. 12. ID.; EVIDENCE; ALIBI; WEAK DEFENSE CLEARLY NEGATIVE IN NATURE; CANNOT PREVAIL AGAINST POSITIVE DECLARATIONS OF PROSECUTION WITNESSES; WHEN DEFENSE OF ALIBI MAY PROSPER. Appellant's defense that he was in another place at the time of Francis Banaga's disappearance and killing must necessarily fail. Indeed, trite as our innumerable reiterations have already made this statement of rejection, we must perforce again reprobate appellant's alibi as an inherently weak defense decidedly easy of concoction. Apart from that, it is considered as clearly negative in nature. Hence, when arrayed against the positive declarations of the witnesses for the prosecution, the same would all the more be given little consideration. For it to prosper, it must be shown that not only was the accused at some other place at the time of the commission of the offense, but that it was also physically impossible for him to have been there when it happened. Indeed, as correctly pointed out by the trial court in its decision, appellant was not even sure as to his whereabouts on February 8, 1978. He simply offered as an explanation therefor that he was "more or less" in Batangas, which allegation was completely uncorroborated. 13. ID.; ID.; TESTIMONY OF PARTICEPS CRIMINIS VIEWED WITH CAUTION; CASE AT BAR. It is true that the testimony of a particeps criminis is to be invariably viewed with much caution, coming as it does from a polluted source. However, in the case at bar and after a careful evaluation, we find no plausible reason to depart from the favorable appreciation by the trial court of Padica's testimony which the said court characterized as reasonable and probable, given in a clear, straightforward and convincing manner thereby leaving no doubt in the mind of said court that he was telling the truth. 14. ID.; ID.; CREDIBILITY OF WITNESSES; TRIAL COURT'S FINDINGS ACCORDED FINALITY BY APPELLATE COURTS. Jurisprudentially embedded is the rule that the stamp of approval given by the trial court on the testimony of a particular witness as a consequence of its factual findings is normally accorded finality by appellate courts, the court below having had the opportunity

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to observe closely the manner by which such witness testified. Furthermore, not a single shred of evidence was introduced by the defense to show any ill motive on the part of Padica to impute such a serious crime on appellant and his brothers, thus entitling to considerable credit his testimony regarding the circumstances surrounding Francis Banaga's death. These conclusions we confirm, not by mere reliance on dicta, but from our own review and calibration of the evidence. DECISION REGALADO, J p: Accused-appellant Leon Marajas, Jr. y Ramos appeals from the judgment of the Regional Trial Court of Pasay City, Branch CXVI, dated January 8, 1990, finding him guilty beyond reasonable doubt of the crime of Kidnapping for ransom with murder upon an amended information dated November 16, 1984 and reading as follows: "That on or about the 8th day of February, 1978, in the Municipality of Paraaque, Metro Manila, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together with John Doe @ Boy Taga, Peter Doe @ Eddie Boy Marajas, Richard Doe @ Tito and Edward Doe @ Elmer whose true names, identities and whereabouts are still unknown and mutually helping and aiding one another, with the use of three (3) firearms with the different caliber (sic) by means of craft, violence against and intimidation of person, did then and there kidnap Francis Banaga, detain and deprive him of his liberty for a period of three (3) days and demanded (sic) five hundred thousand pesos (P500,000.00) for his release and while thus illegally detaining the latter, said accused, pursuant to said conspiracy did then and there wilfully, unlawfully and feloniously, with intent to kill and with treachery shoot Francis Banaga, thereby inflicting on him gunshot wounds on the head and other parts of his body which caused his instantaneous death as a consequences." 1 The records show that Leon Marajas, Jr., Romeo Padica, Leslie Gans, Florentino Fabrigas, Romeo Pradez, Leonardo Marajas and Leopoldo Marajas were originally charged in the latter part of 1978 with kidnapping for ransom with murder and illegal possession of firearms before Military Commission No. 27 in Criminal Case No 27-163 thereof. However, on January 11, 1979, counsel for accused Leon Marajas, Jr. prayed for the transfer of the case to the civil courts. 2 On August 17, 1981, the Office of the Provincial Fiscal of Rizal filed an information for kidnapping for ransom with murder, docketed as Criminal Case No. Pq-81-1596-P, before Branch III of the then Court of First Instance of Pasay City against the aforementioned accused, but with the exception of herein appellant whose name was inadvertently not included therein. 3 A separate charge for illegal possession of firearms was lodged before Branch 146 of the Makati Regional Trial Court but the case was later placed in the archives some time in 1985. 4 Accused Romeo Padica and herein appellant were both arraigned on January 15, 1982 and, with the assistance of their respective counsel, both pleaded not guilty. 5 It appears, however, that appellant entered his plea during the arraignment under the name of "Leonardo Marajas." 6 Trial thereafter ensued but, subsequently, the case was reraffled to Branch CXVI, Pasay City, of the Regional Trial Court where it remained until the conclusion of the trial in 1990. Earlier thereto, however, upon discovery of the omission of herein appellant's name in the original information, the prosecution filed a motion on November 16, 1984 for the admission of an amended information including appellant's name as one of the accused. 7 On May 30, 1985, the trial court issued an order admitting the amended information. 8 Thereafter, or on July 17, 1985, appellant, duly assisted by counsel, entered a plea of guilty upon being arraigned on the amended information. 9 On the other hand, in an order dated August 27, 1985, 10 accused Padica was discharged from the information to be utilized as a state witness. The People's brief, drawing principally from the factual findings of the court a quo based on the evidence adduced in this case, with supplemental data and documentation of the testimonial evidence as borne out by the transcripts, which we find to be correct, presented the prosecution's case in this wise: "On or about 9:00 o clock in the morning of February 8, 1978, appellant and his brother, Leopoldo Marajas, using a car driven by Leopoldo, visited Romeo Padica in his house in Muntinlupa, Metro Manila. Leopoldo requested Padica, his compadre, to drive for Eddie Boy Marajas, a brother of Leopoldo and appellant, and his classmates, giving Padica P100.00 for the purpose. Upon receiving the amount, Padica, pursuant to the instructions of Leopoldo, drove the car, with Leopoldo and appellant on board, and proceeded to Samson Tech in Pasay City, arriving there at about 10:00 A.M. Leopoldo left the vehicle and, upon coming back after a while, he told Padica that they were going to Sukat, Paraaque. In Sukat, the three stopped at a restaurant when (sic) they ordered something to eat (TSN, November 17, 1988, pp. 610). "Thereafter, with Padica still driving the car, they proceeded to the Superville Subdivision, also in Sukat, where they arrived at about 11:30 A.M. of the same date. Eddie Boy Marajas and Francis Banaga, both fourteen (14) years of age, more or less, were in said subdivision. Leopoldo alighted from the car and talked to them. Subsequently, Leopoldo together with Francis and Eddie Boy, boarded the car. All of them proceeded to Calamba, Laguna, with Padica still driving the vehicle. Seated beside Padica was Leopoldo Marajas, while appellant and Eddie Boy occupied the back seat, with Francis Banaga between them (Ibid, pp.-10-13). "Upon reaching Calamba at about 12:00 noon of the same date, Leopoldo Marajas told Padica, to drive the car into the sugarcane plantation at the side of the road. Once inside the plantation, Padica stopped the car when told to do so by Leopoldo, who then alighted from the vehicle and told Francis Banaga to alight. However, Francis refused to get down from the car. Notwithstanding his resistance, he was forced out of the car by Leopoldo Marajas, Eddie Boy and appellant, who pulled him out of the vehicle. Thereafter, the three brought Francis Banaga to a place inside the sugarcane plantation, more or less ten (10) meters away from the car, while Padica remained in the vehicle. Leopoldo Marajas then delivered several stabbing blows at Banaga after which appellant shot Banaga with a handgun. Banaga fell on the ground. Leopoldo, Eddie Boy and appellant

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returned to the car. Leopoldo took the wheel from Padica and drove the car to Muntinlupa, where Padica alighted and was left behind with Leopoldo warning Padica, 'Pare, steady ka lang, isang bala ka lang.' (Ibid., pp. 10-19). "On or about 5:00 P.M. of the same day, while in his house at Gatchalian Subdivision in Paraaque, Tomas Banaga, father of Francis, became alarmed when his son failed to come home. A few minutes after 6:00 P.M. of (the) same date, someone called up by phone, telling Tomas not to look for his son as he was in good condition, and demanding P500,000.00 for his (Francis') release. Tomas reported the incident to the Philippine Constabulary authorities in Camp Crame, Quezon City. Sgt. Rodolfo Bucao, Sgt. Villanueva and Sgt. Cierlito were dispatched to the Banaga residence (TSN, January 15, 1982, pp. 4-6). "On February 9, 1978, Tomas received a second phone call in the course of which the caller reduced the amount demanded to P200,000.00. On February 10, 1978, there was another phone call with (the) caller lowering the amount to P23,000.00 and giving instructions that the money be wrapped in a newspaper, placed in a paper bag, and delivered by a girl wearing a T-shirt to Luneta, in front of the National Library, under a true with red flowers, at 8:30 P.M. of February 10, 1978 (Ibid., pp. 6-10). "Norma Camello, sister-in-law of Tomas Banaga, volunteered to deliver the money as the maid of (the) Banaga family who was supposed to do it was scared. Between 7:00 and 7:30 P.M. of February 10, 1978, Camello was brought by Sgt. Bucao and CIC Ocampo in front of Bayview Hotel at Roxas Blvd., Manila. At about 8:00 P.M. of the same date, she went to the National Library at Luneta and positioned herself under a tree with red flowers, pursuant to the instructions of the caller. A few minutes later, a taxicab arrived. Appellant alighted from the vehicle, approached Camello and got the money from her which was in a paper bag, saying: 'Hihintayin na lang ninyo ang bata mamaya sa bahay.' (TSN, Sept. 19, 1985, pp. 6-12). When appellant returned to the waiting taxicab and was about to board it, Sgt. Simplicio Dulay, one of those sent to Luneta to entrap the person who would receive the ransom money, apprehended and arrested appellant (TSN, March 11, 1986, pp. 2-5). "(At) or about 2:00 P.M. of February 11, 1978, pursuant to the information given by appellant during the investigation, a Philippine Constabulary team led by Lt. Napoleon Cachuela, accompanied by appellant, went to Calamba, Laguna search for the body of Francis Banaga. Appellant led the team to the place where the cadaver was dumped, which was inside a sugarcane plantation about 75 meters away from the road. The team recovered the body of Francis Banaga and brought it to the Municipal Health Officer of Calamba for autopsy (TSN, October 2, 1986, pp. 10-17). "According to the necropsy report of Dr. Eusebio Panganiban of the Calamba Municipal Health Office, Francis Banaga sustained two (2) entry gunshot wounds, one on the head and the other on the chest, with two (2) exit gunshot wounds and several lacerated wounds. The death of Francis was caused by 'intrathoracic brain hemorrhage due to gunshot wounds.' (TSN, July 25, 1986, pp. 17-69). "After three (3) years in hiding out of fear for his life, Romeo Padica finally revealed to Lt. Cruz (sic) of Regional Security Unit Intelligence Division, Lucena City that he (Padica) witnessed the killing of Francis Banaga. Padica had met Lt. Cruz (sic) near the Lucena City Market and after making the disclosure, surrendered to the authorities (TSN, December 12, 1988, p. 6)." 11 Appellant predictably presented a different narration of the events that led to his arrest. He insists that he was the victim of an elaborate frame-up by the military authorities assigned to investigate the case. Appellant claims that on February 8, 1978, the day that the victim disappeared, he was in Batangas province, where he was a resident. In the early morning of February 10, 1978, he decided to go to Manila, with Sto. Tomas, Batangas as his point of departure, in order to thresh out some financial matters in connection with his business of buy and sell. 12 He arrived in Manila at around 9:00 A.M. and proceeded to the office of Mrs. Aquilina Marquez-Marajas, his sister-in-law, at Mabini Street in Malate to talk to his brother, Leonardo. Not finding Leonardo there, he then went to the house of his sister, Nelly Marajas, a neighbor of the Banaga family, at Gatchalian Subdivision in Paraaque. He was about to board a tricycle at the main gate of the subdivision at around 9:30 A.M. when he was suddenly accosted by two Metrocom officers in civilian clothes who forcibly took him to a car. Appellant was later brought at about 12:00 noon to the Siesta Court Hotel, also in Malate, where he was repeatedly beaten and subjected to torture by his abductors who tried in vain to extract information about the disappearance of Francis Banaga. 13 In the evening of the same day, he was taken out of the hotel and was taken by the men to an unspecified safehouse where, once again, his ordeal at their hands was resumed. Unable to bear the maltreatment any further, appellant then tried to fool them by admitting that the missing Francis Banaga could be found in Paete, Laguna. He then led a group of his captors to the said place but they found no trace of the missing boy. Incensed at the deception, the men took him back to the safehouse. 14 Later, appellant was again taken out of the safehouse and, together with another captive whom he identified only as "Florentino," he was brought to an isolated sugarcane plantation. There Florentino led the military team to the cadaver of Francis Banaga. 15 Appellant and Florentino were later brought back to the safehouse. The former claims that he was kept there for about two months, during which time he helped in the maintenance and care of the safehouse and its surroundings. He also met at the safehouse Leslie Gans, one of the accused, but he had no occasion to discuss their predicament with him. After appellant's confinement, he was turned over to the prison authorities of Bicutan Rehabilitation Center where he remained until the start of the trial. 16 After more than eight years of trial, which for one reason or another was punctuated by numerous and needless postponements, the trial court rendered its assailed decision pronouncing the guilt of appellant for the crime of kidnapping for ransom with murder and sentencing him to suffer the penalty of reclusion perpetua and to pay Tomas Banaga, father of Francis Banaga, the sum of P30,000.00 as indemnity for the death of the child, without pronouncement a to costs. 17

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Appellant is now before us insisting on the reversal of the judgment of conviction by theorizing that the court below erred: (a) in ruling that the guilt of appellant was proven beyond reasonable doubt; (b) in giving full credence to the testimony of state witness Romeo Padica; (c) in laying emphasis on the weakness of the defense interposed by appellant; and (d) in disregarding the inconsistencies raised by the defense as minor and insubstantial. 18 After a careful and exhaustive review of the records, the testimonial and documentary evidence, and the arguments of the prosecution and the defense, we are satisfactorily persuaded that the prosecution has duly discharged its onus probandi insofar as the culpability of appellant is concerned, but we do not adopt as correct the nature or categorization of the offense for which he must do penance. 1. At the outset, from the evidence on record, we are not convinced that the crime of kidnapping for ransom was committed as charged in both the original and amended informations. Rather the crime committed was murder, attended by the qualifying circumstances of treachery and/or abuse of superior strength, and not the complex crime of kidnapping for ransom with murder as found by the trial court without objection by either the prosecution or defense. The essential element in the crime of kidnapping that the victim must have been restrained or deprived of his liberty, 19 or that he was transported away against his will with the primary or original intent to effect that restraint, is absent in this case. The malefactors evidently had only murder in their hearts when they invited the trusting Francis Banaga to go with them to Laguna, and not to confine or detain him for any length of time or for any other purpose. We have consistently held that where the taking of the victim was incidental to the basic purpose to kill, the crime is only murder, 20 and this is true even if, before the killing but for purposes thereof, the victim was taken from one place to another. 21 Thus, where the evident purpose of taking the victims was to kill them, and from the acts of the accused it cannot be inferred that the latter's purpose was actually to detain or deprive the victims of their liberty, the subsequent killing of the victims constitute the crime of murder, 22 hence the crime of kidnapping does not exist and cannot be considered as a component felony to produce a complex crime of kidnapping with murder. In fact, as we held in the aforecited case of Masilang, et al., although the accused had planned to kidnap the victim for ransom but they first killed him and it was only later that they demanded and obtained the money, such demand for ransom did not convert the crime into kidnapping since no detention or deprivation of liberty was involved, hence the crime committed was only murder. 23 That from the beginning of their criminal venture appellant and his brothers intended to kill the victim can readily be deduced from the manner by which they swiftly and cold-bloodedly snuffed out his life once they reached the isolated sugarcane plantation in Calamba, Laguna. Furthermore, there was no evidence whatsoever to show or from which it can be inferred that from the outset the killers of the victim intended to exchange his freedom for ransom money. On the contrary, the demand for ransom appears to have arisen and was consequently made as an afterthought, as it was relayed to the victim's family very much later that afternoon after a sufficient interval for consultation and deliberation among the felons who had killed the victim around five hours earlier. It will be observed that under Article 267 of the Revised Penal Code, the circumstance that the kidnapping is perpetrated for the purpose of ransom raises the imposable penalty to death. 24 It is essential, however, that the element of deprivation or restraint of liberty of the victim be present. The fact alone that ransom money is demanded would not per se qualify the act of preventing the liberty of movement of the victim into the crime of kidnapping, unless the victim is actually restrained or deprived of his liberty for some appreciable period of time or that such restraint was the basic intent of the accused. Absent such determinant intent and duration of restraint, the mere curtailment of freedom of movement would at most constitute coercion. In addition, Francis Banaga, then already fourteen years of age and a fourth year high school student, was neither forced nor coerced unlawfully into going along with his killers. He voluntarily boarded the car and went with the Marajas brothers to Laguna. The victim had every reason to trust them as they were his neighbors in Gatchalian Subdivision. In fact, one of the brothers, accused Leonardo Marajas alias "Eddie Boy," was his schoolmate and a playmate. 25 There was treachery since, under the aforestated circumstances, the victim was lured by his killers into going with them to Laguna without the slightest inkling of their nefarious design, coupled with the sudden and unexpected assault by the malefactors on the hapless victim in the isolated sugarcane plantation in Calamba, which thereby divested him of an opportunity either to effectively resist or to escape. 26 Abuse of superior strength was likewise present, for the accused deliberately resorted to their collective strength for the purpose of overpowering whatever feeble defense the poor Francis Banaga could offer. 27 They thus insured the commission of the crime with practically no risk at all to themselves. Under the factual features present in the commission of the crime, however, we are inclined to grant that the circumstance of superior strength should not be appreciated distinctly but should be considered as being absorbed in and by treachery, 28 and the same is true with regard to the allegation of craft. Hence, abuse of superior strength may not be taken into account separately in this case, either as a qualifying or as an aggravating circumstance. On the other hand, although the trial court and both parties herein have again passed sub silentio thereon, it is evident that the aggravating circumstance of uninhabited place was present since appellant and his co-accused obviously and deliberately chose the desolation and isolation of the sugarcane plantation to perpetrate the crime far from the gaze of potential eye-witnesses. 29 This circumstance is underscored by the fact that they committed the crime at about 12:00 noon, a time of day when any passersby or assistance could hardly be expected in the vicinity of the locus criminis. 30 This aggravating circumstance of despoblado should, therefore, be considered against appellant even if it was not alleged in the informations since it was duly proved. 31 Appellant's defense that he was in another place at the time of Francis Banaga's disappearance and killing must necessarily fail. Indeed, trite as our innumerable reiterations have already made

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this statement of rejection, we must perforce again reprobate appellant's alibi as an inherently weak defense decidedly easy of concoction. Apart from that, it is considered as clearly negative in nature. Hence, when arrayed against the positive declarations of the witnesses for the prosecution, the same would all the more be given little consideration. 32 For it to prosper, it must be shown that not only was the accused at some other place at the time of the commission of the offense, but that it was also physically impossible for him to have been there when it happened. 33 Indeed, as correctly pointed out by the trial court in its decision, appellant was not even sure as to his whereabouts on February 8, 1978. He simply offered as an explanation therefor that he was "more or less" in Batangas, which allegation was completely uncorroborated. 34 In light of the foregoing, appellant's further denial that he was entrapped on the night of February 10, 1978 by the authorities after receiving ransom money from Norma Camello must likewise be rejected. Both Norma Camello and Sgt. Simplicio Dulay, one of the police operatives, positively and without hesitation identified appellant as the person who was collared at Luneta Park. 35 Moreover, the police report clearly and definitely bears out the fact that appellant was arrested by the investigating police officers on that night pursuant to the dragnet plan that was prepared for the purpose, 36 the veracity of which record further enjoys the presumption of regularity in the performance of official duties which appellant failed to rebut. 2. Appellant asserts that the trial court should not have given credence to the testimony of Romeo Padica as it is incredible and inconsistent with the other evidence on record. He affects surprise as to why the Marajas brothers would go to the extent of hiring Padica to drive for them when, in fact, Padica himself knew that Leopoldo Marajas was a skilled driver. Moreover, he expresses disbelief that Romeo Padica never conversed with the group while they were on the road and that, although the latter claims to be a close friend of Leopoldo, he never even knew what was Leopoldo's profession and what was the surname of their common "compadre." He likewise characterizes as incredible the circumstance that he and his cohorts supposedly carried out the crime in broad daylight and that thereafter they simply dismissed Padica with a casual threat of "Pare, steady ka lang, isang bala ka lang." There is no merit in all the foregoing submissions and pretensions of appellant. It is true that the testimony of a particeps criminis is to be invariably viewed with much caution, coming as it does from a polluted source. 37 However, in the case at bar and after a careful evaluation, we find no plausible reason to depart from the favorable appreciation by the trial court of Padica's testimony which the said court characterized as reasonable and probable, given in a clear, straightforward and convincing manner thereby leaving no doubt in the mind of said court that he was telling the truth. 38 Jurisprudentially embedded is the rule that the stamp of approval given by the trial court on the testimony of a particular witness as a consequence of its factual findings is normally accorded finality by appellate courts, the court below having had the opportunity to observe closely the manner by which such witness testified. 39 Furthermore, not a single shred of evidence was introduced by the defense to show any ill motive on the part of Padica to impute such a serious crime on appellant and his brothers, thus entitling to considerable credit his testimony regarding the circumstances surrounding Francis Banaga's death. These conclusions we confirm, not by mere reliance on dicta, but from our own review and calibration of the evidence. There is certainly nothing strange in the matter of the Marajas brothers requesting Padica to drive for them. As testified to by the latter, he was then a close friend of one of the brothers, Leopoldo, who was the one who requested him to drive, and the latter presumably had full confidence in him as he was at the time a professional driver of taxicabs. Romeo Padica, likewise, can not be discredited just because of his silence on the road and for not knowing Leopoldo's profession and the surname of a common "compadre." It is of common knowledge that there are persons who are taciturn and not as inquisitive as others, or who disdain prying into the affairs even of their close friends. Be that as it may, this witness did testify to and narrate in his sworn statement some personal matters regarding the Marajas siblings, such as the fact that Leopoldo was staying at a house adjacent to that of the Banagas in Tionguiao Street at Gatchalian Subdivision together with his wife, children and Eddie Boy Marajas; that said house was owned by a sister of the brothers; and that Francis Banaga, whose picture he positively identified in court, was a playmate and schoolmate of Eddie Boy Marajas, thus lending credence to his claim of close and fraternal ties with Leopoldo Marajas. 40 The fact that appellant and his co-accused carried out the murder of Francis Banaga in broad daylight is hardly surprising. As pointedly noted by the Solicitor General, "it is not difficult to believe that appellant and his co-accused committed the crime in broad daylight because there were no other persons at the scene of the incident," as the same was inside a desolate sugarcane plantation in the outskirts of Calamba, Laguna and the crime was perpetrated at noon of that day, as we have earlier explained. Having demonstrated to Padica the brutal and merciless manner in which they disposed of Francis Banaga, appellant and his brothers were undoubtedly secure in the thought that Padica would have been sufficiently terrorized thereby and would thereafter keep his silence, and so, just for good measure, they uttered the threat on the latter's life simply as a reminder of what they had in store for him should he waver and ignore that injunctive warning. It is further contended by appellant that the trial court should not have granted the motion to discharge Romeo Padica from the information, as one of the conditions for its grant has not been met, namely, that the prosecution has not shown that Padica did not appear to be the most guilty. Incidentally, appellant slurs over the fact that this order of the trial court was sustained by the Court of Appeals in CA-G.R. No. 16302 which denied appellant's petition for certiorari and prohibition assailing said order, the judgment therein having become final and executory on January 20, 1989. 41 Appellant has also clearly lost sight of the rule that the discharge of an accused to be a state witness, lies within the sound discretion of the court before whom it is sought and in the exercise of that discretion, it is not required that the court be

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absolutely certain that all the requirements for the proper discharge of a co-accused be present. 42 In the case under consideration, the prosecution presented enough evidence to support its motion for the discharge of Padica. The trial court's reliance thereon and its consequent finding on the basis thereof that Padica did not appear to be the most guilty must be respected as it was in better position to evaluate such evidence. Appellant likewise points to portions in the testimony of Padica which are allegedly not substantiated by the evidence on record. Thus, appellant argues that while Padica claimed that the victim was stabbed by Leopoldo Marajas and then shot at four times by appellant, yet the necropsy report of the medico-legal officer, Dr. Eusebio P. Panganiban, showed no stab wounds but only lacerated wounds and two gunshot wounds. Further, Padica's testimony that the victim was dragged inside the plantation and instantly stabbed and shot to death is supposedly belied by the findings in the necropsy report that Francis Banaga's body had several hematomas and contusions. 43 We nonetheless agree with and give due credit to the following explanation of the court below regarding these seeming conflicting aspects: "The defense counsel also capitalized on the supposed inconsistency between the allegation of Padica that Leon Marajas, Jr. shot Banaga four (4) times and the autopsy report stating that the victim sustained two (2) entry gunshot wounds. Padica testified that Leon Marajas, Jr. shot Francis Banaga four (4) times without stating that the victim was hit also four (4) times. The fact that he suffered two (2) entry gunshot wounds clearly indicates that Francis was shot, supporting the version of Padica that the child was fired upon by Leon Marajas, Jr. "Also pointed out as a basis for not believing the testimony of Padica is the supposed conflict between his assertion that Leopoldo Marajas stabbed Banaga with a knife and the finding of Dr. Panganiban that the victim, aside from the gunshot wounds, sustained only lacerated wounds and contusions. The defense implied that Banaga was not stabbed by Leopoldo Marajas as there is no finding that he sustained stab wounds. A logical analysis of this point shows that there is no inconsistency. Padica stated that he saw the accused Leopoldo Marajas stab the victim but he did not say that Banaga was hit by the stabbing blows delivered by the said accused. It could also be that one of the blows hit the boy but without piercing his body, causing only lacerations thereon." 44 As for the several hematomas and contusions that were discovered on the body of Francis Banaga, it is entirely possible that the same were inflicted when the victim put up a furious struggle for his life against his assailants. According to Padica, the Marajas brothers forcefully pulled out Banaga from the car when they stopped by the roadside. They continued to inflict physical harm on the boy while prodding him to proceed inside the sugarcane plantation until they reached a clearing where, after Leopoldo Marajas delivered stabbing blows on the victim which may not have inflicted knife wounds but contusions from the assailant's clenched fists, Leon Marajas, Jr. then fired away with the fatal shots. All the while and just before he was shot to death, Padica narrated that the victim desperately exerted all efforts to ward off the assault on his person. 45 Appellant also raises as an issue the questionable manner in which Padica surrendered, after nearly three years of hiding, to Lt. Cesar Perez of the Lucena PC Regional Security Unit whom he met only for the first time at the Lucena City marketplace. But, as Padica candidly revealed, and we find his explanation satisfactory and credible, he had desired all along to surrender as he had grown tired of constantly fearing for his life and of his difficult plight as a fugitive from justice. He was obviously always on the lookout for persons in authority whom he could trust during his stay of two to three months in Lucena City where he had in the meantime found work as a porter in the public market. In the course of his stay there, he had heard about the "kindhearted" Lt. Perez, a ranking officer of the local constabulary. 46 His subsequent meeting and surrender to Lt. Perez at the marketplace was no strange coincidence as it is obviously a place where all kinds of people go to and cross paths. That it may have taken Padica over two years to finally give himself up to the authorities is understandable. He had witnessed a heinous crime perpetrated on a defenseless fourteen-year old boy by his killers, and the latter had threatened him with bodily harm should he reveal what they had done. In view thereof, it was but natural that Padica would hide, away from the possible clutches of the Marajas brothers, and keep unto himself the dark secret lest he suffer the same grim fate that befell Francis Banaga. 3. Appellant finally contends that the failure of the prosecution to charge him as an accused in the original information is a fatal defect. Again, we find no merit in this fatuous assertion. The rule is that the complaint or information should sufficiently allege the name of the accused, failing which the complaint or information would be rendered invalid. The test of sufficiency is laid down in Section 7, Rule 110 of the Rules of Court, which states: "Sec. 7. Name of the accused. A complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known, or if his name cannot be discovered he must be described under a fictitious name with a statement that his true name is unknown. If in the course of the proceeding the true name of the accused is disclosed by him, or appears in some other manner to the court, the true name of the accused shall be inserted in the complaint or information and record." In the case at bar, there is no dispute that appellant was arraigned under the original information and that he entered thereto a plea of not guilty under the name of "Leonardo Marajas." At that juncture, appellant should have raised the error as to his identity by filing a motion to quash on the ground of lack of jurisdiction over his person, in line with the doctrine explained in People vs. Narvaes 47 laid down as early as 1934. But, as aforestated, appellant did not do so but instead voluntarily appeared at the arraignment and pleaded not guilty thereat, albeit under a different name. Consequently, the trial court acquired jurisdiction over his person and it could have rendered a valid judgment of conviction based on the original information even without need of an amendatory information to

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correct appellant's name. What we stated in Narvaes is worth repeating: ". . . (w)hen the appellant was arraigned under the name of Pedro Narvaes, which is the name appearing in the information, he merely entered his plea of 'not guilty' under the said name. It was on that occasion that he should have for the first time raised the question of his identity, by filing a demurrer based on the court's lack of jurisdiction over his person, inasmuch as he was then considered as Pedro Narvaes, not Primo Narvaes. Not having filed the said demurrer, it must necessarily be understood that he renounced it and therefore he is now estopped from raising, or insisting to raise, the same question, not only in this appeal but even at the trial . . ." The subsequent amendment to insert in the information Leon Marajas, Jr.'s real name involved merely a matter of form as it did not, in any way, deprive appellant of a fair opportunity to present his defense. 48 Moreover, the amendment neither affected nor altered the nature of the offense charged since the basic theory of the prosecution was not changed nor did it introduce new and material facts. 49 Such an amendment is explicitly allowed under the second paragraph of Section 7, in relation to Section 14, Rule 110 of the Rules of Court, the pertinent portion of which provides that "(t)he information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused." At any rate, whatever irregularity may have attended the inclusion of appellant's name as an accused in the amended information has been waived by his subsequent appearance and entry of plea at his arraignment under said amendatory information. WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accusedappellant Leon Marajas, Jr. y Ramos of the crime of murder and IMPOSING upon him the penalty of reclusion perpetua. Accusedappellant is further ORDERED to pay the heirs of the late Francis Banaga the sum of P50,000.00 as death indemnity, in line with current jurisprudential policy, and likewise to pay the costs. SO ORDERED. by 2nd Assistant City Prosecutor of Kalookan City Rosauro J. Silverio, the accusatory portion of which reads: That on or about the month of April 1989, in Kalookan City, Metro Manila, and within the jurisdiction of this Honorable Court, the above-named accused, being then the owners, proprietors, managers and administrators of Sir John Clinic and as such said accused had the custody of Arabella Somblong, a minor, conspiring together and mutually helping one another and with deliberate intent to deprive the parents of the child of her custody, did then and there willfully, unlawfully and feloniously fail to restore the custody of said Arabella Sombong to her parents by giving said custody of subject minor to another person without the knowledge and consent of her parents. Contrary to Law. [1 Both accused were arrested, and then arraigned on October 27, 1992 when they pleaded not guilty to the crime charged. After trial, on May 31, 1995, a decision was rendered by the Regional Trial Court of Kalookan City, Branch 123, the decretal portion of which disposes as follows: WHEREFORE, this Court finds both accused Spouses Vicente Ty and Carmen Ty guilty beyond reasonable doubt of the crime of kidnapping a minor and failure to return the same as defined and penalized by Article 270 of the Revised Penal Code and hereby sentences them to suffer imprisonment of reclusion perpetua. The accused are hereby ordered to pay the private complainant the sum of P100,000.00 by way of moral damages caused by anxiety, by her being emotionally drained coupled by the fact that up to this date she could not determine the whereabouts of her child Arabella Sombong. SO ORDERED. [2 The accused now interposes this appeal alleging the ensuing assignment of errors, viz: I THE TRIAL COURT ERRED IN FINDING THAT APPELLANTS DELIBERATELY FAILED TO RESTORE THE CHILD TO HER MOTHER, AND CONVICTING THEM UNDER ART. 270 OF THE REVISED PENAL CODE, AND SENTENCING THEM TO RECLUSION PERPETUA; II THE TRIAL COURT ERRED IN NOT HOLDING THAT THE CRIME COMMITTED, IF ANY, IS THAT DEFINED AND PENALIZED UNDER ART. 227 OF THE REVISED PENAL CODE; III KAPUNAN, J.: Vicente Ty AND Carmen Ty were charged with the crime of kidnapping and failure to return a minor in an information filed THE TRIAL COURT ERRED IN NOT RECOMMENDING EXECUTIVE CLEMENCY PURSUANT TO PRECEDENT IN PEOPLE vs. GUTIERREZ, 197 SCRA 569; and

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KIDNAPPING AND FAILURE TO RETURN A MINOR


[ G.R. No. 121519. October 30, 1996 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. VICENTE TY and CARMEN TY, Accused-Appellants. DECISION

TITLE IX CASES CRIMES AGAINST PERSONAL LIBERTY AND SECURITY


IV THE TRIAL COURT ERRED IN AWARDING COMPLAINANT THE SUM OF P100,000.00 BY WAY OF MORAL DAMAGES. [3 The relevant antecedents surrounding the case are as follows: On November 18, 1987, complainant Johanna Sombong brought her sick daughter Arabella, then only seven (7) months old, for treatment to the Sir John Medical and Maternity Clinic located at No. 121 First Avenue, Grace Park, Kalookan City which was owned and operated by the accused-appellants. Arabella was diagnosed to be suffering bronchitis and diarrhea, thus complainant was advised to confine the child at the clinic for speedy recovery. About three (3) days later, Arabella was well and was ready to be discharged but complainant was not around to take her home. A week later, complainant came back but did not have enough money to pay the hospital bill in the amount of P300.00. Complainant likewise confided to accused-appellant Dr. Carmen Ty that no one would take care of the child at home as she was working. She then inquired about the rate of the nursery and upon being told that the same was P50.00 per day, she decided to leave her child to the care of the clinic nursery. Consequently, Arabella was transferred from the ward to the nursery. 4 Thereafter, hospital bills started to mount and accumulate. It was at this time that accused-appellant Dr. Ty suggested to the complainant that she hire a "yaya" for P400.00 instead of the daily nursery fee of P50.00. Complainant agreed, hence, a "yaya" was hired. Arabella was then again transferred from the nursery to the extension of the clinic which served as residence for the hospital staff. 5 From then on, nothing was heard of the complainant. She neither visited her child nor called to inquire about her whereabouts. Her estranged husband came to the clinic once but did not get the child. Efforts to get in touch with the complainant were unsuccessful as she left no address or telephone number where she can be reached. This development prompted Dr. Ty to notify the barangay captain of the childs abandonment. 6 Eventually, the hospital staff took turns in taking care of Arabella. 7 Sometime in 1989, two (2) years after Arabella was abandoned by complainant, Dr. Fe Mallonga, a dentist at the clinic, suggested during a hospital staff conference that Arabella be entrusted to a guardian who could give the child the love and affection, personal attention and caring she badly needed as she was thin and sickly. The suggestion was favorably considered, hence, Dr. Mallonga gave the child to her aunt, Lilibeth Neri. 8 In 1992, complainant came back to claim the daughter she abandoned some five (5) years back. When her pleas allegedly went unanswered, she filed a petition for habeas corpus against accused-appellants with the Regional Trial Court of Quezon City. Said petition was however denied due course and was summarily dismissed without prejudice on the ground of lack of jurisdiction, the alleged detention having been perpetrated in Kalookan City. Thereafter, the instant criminal case was filed against accusedappellants. Complainant likewise filed an administrative case for dishonorable conduct against accused-appellant Dr. Carmen Ty before the Board of Medicine of the Professional Regulation Commission. This case was subsequently dismissed for failure to prosecute. On October 13, 1992, complainant filed a petition for habeas corpus with the Regional Trial Court of Quezon City, this time against the alleged guardians of her daughter, namely, Marietta Neri Alviar and Lilibeth Neri. On January 15, 1993, the trial court rendered a decision granting the petition and ordering the guardians to immediately deliver the person of Cristina Grace Neri to the complainant, the court having found Cristina to be the complainants child. On appeal to the Court of Appeals, however, said decision was reversed on the ground that the guardians were not unlawfully withholding from the complainant the rightful custody of Cristina after finding that Cristina and complainants daughter are not one and the same person. On January 31, 1996, this Court in Sombong v. Court of Appeals 9 affirmed the Court of Appeals decision. In this appeal, accused-appellants would want us to take a second look and resolve the issue of whether or not they are guilty of kidnapping and failure to return a minor. Accused-appellants of course contend that they are not guilty and the Solicitor General agrees. In its Manifestations and Motion in lieu of Appellees Brief, the Office of the Solicitor General recommends their acquittal. We agree. As we have mentioned above, this Court in Sombong v. Court of Appeals 10 affirmed the decision of the Court of Appeals reversing the trial courts ruling that complainant has rightful custody over the child, Cristina Grace Neri, the latter not being identical with complainants daughter, Arabella. The Court discoursed, thusly: Petitioner does not have the right of custody over the minor Cristina because, by the evidence disclosed before the court a quo, Cristina has not been shown to be petitioners daughter, Arabella. The evidence adduced before the trial court does not warrant the conclusion that Arabella is the same person as Cristina. xxx In the instant case, the testimonial and circumstantial proof establishes the individual and separate existence of petitioners child, Arabella, from that of private respondents foster child, Cristina. We note, among others, that Dr. Trono, who is petitioners own witness, testified in court that, together with Arabella, there were several babies left in the clinic and so she could not be certain whether it was Arabella or some their baby that was given to private respondents. Petitioners own evidence shows that, after the confinement of Arabella in the clinic in 1987, she saw her daughter again only in 1989 when she visited the clinic. This corroborates the testimony of petitioners own witness, Dra. Ty,

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that Arabella was physically confined in the clinic from November, 1987 to April, 1989. This testimony tallies with her assertion in her counter-affidavit to the effect that Arabella was in the custody of the hospital until April, 1989. All this, when juxtaposed with the unwavering declaration of private respondents that they obtained custody of Cristina in April, 1988 and had her baptized at the Good Samaritan Church on April 30, 1988, leads to the conclusions that Cristina is not Arabella. Significantly, Justice Lourdes K. Tayao-Jaguros, herself a mother and the ponente of the herein assailed decision, set the case for hearing on August 30, 1993 primarily for the purpose of observing petitioners demeanor towards the minor Cristina. She made the following personal but relevant manifestation: The undersigned ponente as a mother herself of four children, wanted to see how petitioner as an alleged mother of a missing child supposedly in the person of Cristina Neri would react on seeing again her long lost child. The petitioner appeared in the scheduled hearing of this case late, and she walked inside the courtroom looking for a seat without even stopping at her alleged daughters seat; without even casting a glance on said child, and without even that tearful embrace which characterizes the reunion of a loving mother with her missing dear child. Throughout the proceedings, the undersigned ponente noticed no signs of endearment and affection expected of a mother who had been deprived of the embrace of her little child for many years. The conclusion or finding of undersigned ponente as a mother, herself, that petitioner-appellee is not the mother of Cristina Neri has been given support by aforestated observation xxx. xxx Since we hold that petitioner has not been established by evidence to be entitled to the custody of the minor Cristina on account of mistaken identity, it cannot be said that private respondents are unlawfully withholding from petitioner the rightful custody over Cristina. At this juncture, we need not inquire into the validity of the mode by which private respondents acquired custodial rights over the minor, Cristina. xxx Under the facts and ruling in Sombong, as well as the evidence adduced in this case accused-appellants must perforce be acquitted of the crime charged, there being no reason to hold them liable for failing to return one Cristina Grace Neri, a child not conclusively shown and established to be complainants daugther, Arabella. The foregoing notwithstanding, even if we were to consider Cristina Grace Neri and Arabella Sombong as one and the same person, still, the instant criminal case against the accusedappellants must fall. Before a conviction for kidnapping and failure to return a minor under Article 270 of the Revised Penal Code can be had, two elements must concur, namely: (a) the offender has been entrusted with the custody of the minor, and (b) the offender deliberately fails to restore said minor to his parents or guardians. The essential element herein is that the offender is entrusted with the custody of the minor but what is actually punishable is not the kidnapping of the minor, as the title of the article seems to indicate, but rather the deliberate failure or refusal of the custodian of the minor to restore the latter to his parents or guardians. 11 Said failure or refusal, however, must not only be deliberate but must also be persistent as to oblige the parents or the guardians of the child to seek the aid of the courts in order to obtain custody. 12 The key word therefore of this element is deliberate and Blacks Law Dictionary defines deliberate as: Deliberate, adj. Well advised; carefully considered; not sudden or rash; circumspect; slow in determining. Willful rather than merely intentional. Formed, arrived at, or determined upon as a result of careful thought and weighing of considerations, as a deliberate judgment or plan. Carried on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step; slow in action; unhurried; characterized by reflection; dispassionate; not rash. People v. Thomas, 25 Cal. 2d 880, 156 P. 2d 7, 17, 18. By the use of this word, in describing a crime, the idea is conveyed that the perpetrator weighs the motives for the act and its consequences, the nature of the crime, or other things connected with his intentions, with a view to a decision thereon; that he carefully considers all these, and that the act is not suddenly committed. It implies that the perpetrator must be capable of the exercise of such mental powers as are called into use by deliberation and the consideration and weighing of motives and consequences. 13 Similarly, the word deliberate is defined in Corpus Juris Secundum as: DELIBERATE. As a Verb The word is derived from two Latin words which mean literally concerning and to weigh, it implies the possession of a mind capable of conceiving a purpose to act, and the exercise of such mental powers as are called into use by the consideration and weighing of the motives and the consequences of the act; and has been defined as meaning to consider, reflect, take counsel, or to weigh the arguments for and against a proposed course of action; to consider and examine the reasons for and against, consider maturely, ponder, reflect upon, or weigh in the mind; to reflect, with a view to make a choice; to weigh the motives for an act and its consequences, with a view to a decision thereon. As an Adjective The word, used adjectively, implies action after thought and reflection, and relates to the end proposed; indicates a purpose formed in a mind capable of conceiving a purpose; and is based upon an intention accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design. It has been defined as meaning carefully considered; circumspect; entered upon after deliberation and with fixed purpose, formed after careful consideration, and fully or carefully considering the nature or consequences of an act or measure; maturely reflected;

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not sudden or rash, carefully considering the probable consequences of a step; premeditated; slow in determining; weighing facts and arguments with a view to a choice of decision; well-advised. Under some circumstances, it has been held synonymous with, or equivalent to, intentional, premeditated, and willful. Under other circumstances, however, it has been compared with, or distinguished from, premeditated, sudden, and willful. [14 Essentially, the word deliberate as used in the article must imply something more than mere negligence; it must be premeditated, obstinate, headstrong, foolishly daring or intentionally and maliciously wrong. In the case at bar, it is evident that there was no deliberate refusal or failure on the part of the accused-appellants to restore the custody of the complainants child to her. When the accusedappellant learned that complainant wanted her daughter back after five (5) long years of apparent wanton neglect, they tried their best to help herein complainant find the child as the latter was no longer under the clinics care. Accused-appellant Dr. Ty did not have the address of Arabellas guardians but as soon as she obtained it from Dr. Fe Mallonga who was already working abroad, she personally went to the guardians residence and informed them that herein complainant wanted her daughter back. Dr. Ty testified as follows: Q: Now, since you said a while ago that when you placed the child under the (sic) guardianship, you are (sic) aware that the natural mother will get back the child, why did you not return the minor to the natural mother? A: During that time mam, the resident physician who will (sic) discharged the baby was not present because she was abroad. Q: But then madam witness, are you aware where the child was and to whom it was given? A: The exact address was not given to me, mam, before the resident physician left for abroad so, I asked the PAO to give me one month to have (sic) a long distance call to this doctor and asked her for the whereabout(s) of the child. Q: And where you granted the thirty-day period by the Officer of the PAO? A: Yes, mam. Q: What happened if any during that thirty-day period? A: I was able to talk to Fe Mallonga in Bahrain and she told me the exact address of the guardian, mam. Q: Were (sic) you informed (of) the exact address of the guardian, did you informed (sic) the PAO? A: Yes, mam. ATTY. WARD: Q: Then, what happened next, madam witness? A: I was the one who went to the address to be sure that the child was really there, mam. Q: And did you see the child? A: Yes, mam. Q: What did you do with the child? A: I just tell (sic) the child. Ay and laki mo na pala. I just told the child like that and Ive (sic) talked also to the guardian during that time, mam. Q: And what did you tell the guardian? A: I told the guardian that the rightful mother was claiming for the child and that we should talked (sic) with each other at the PAO for the decision, mam. Q: Did the guardian bring the child to the PAOs Office (sic)? A: No mam, she did not appear. Q: Why? A: They told me first that they are (sic) going to contact a lawyer but for (sic) several days, she did not respond anymore, mam. [15 When the guardians refused to return the child, accusedappellant Dr. Ty sought the assistance of the National Bureau of Investigation (NBI) which conducted a conference among the parties but since a case was yet to be filed, the custody of the minor remained with the guardians. This fact is evident from the following testimony, thus: Q: You testified on cross-examination that you located the whereabouts of the child sometime later, what steps did you take up (sic) after you found the child? A: I explained to the guardian that the verbal agreement between the supposed to be guardianship was only a plain guardianship and not as an adoption, sir. Q: You said you went to the NBI after you found the child, why did you go to the NBI? A: Because the guardian are (sic) not willing to surrender the child to the PAOs Office (sic). that is why I asked their help, sir. [16 xxx

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Q: Now, when you informed the present custodian that the natural mother is now claiming the child, why were you not able to get the minor? A: I was not able to get the minor so I asked the help of the NBI to have the child surrender (sic), mam. ATTY. WARD: Q: And what happened when you get (sic) the assistance of the NBI? A: They were the ones who asked the guardian to surrender the child, mam. Q: You stated a while ago that there was no written agreement between you or your hospital and the guardian of the minor, is that correct? A: Yes, mam. Q: For what reason if you know, why (did) the guardian did (sic) not follow you or obey you when you want (sic) to get back the child? A: I dont know of any reason, mam. 17 The efforts taken by the accused-appellants to help the complainant in finding the child clearly negate the finding that there was a deliberate refusal or failure on their part to restore the child to her mother. Evidence is simply wanting in this regard. It is worthy to note that accused-appellants conduct from the moment the child was left in the clinics care up to the time the child was given up for guardianship was motivated by nothing more than an earnest desire to help the child and a high regard for her welfare and well-being. WHEREFORE,premises considered, the decision appealed from is hereby REVERSED and SET ASIDE. Accordingly, accusedappellant VICENTE TY and CARMEN TY are hereby ACQUITTED of the crime charged and are ordered to be released immediately unless they are being detained for other lawful causes. Costs de oficio. SO ORDERED.

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ANTONIO A. LAMERA, Petitioner, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, Respondents. DAVIDE, JR., J.: At around 8:30 o'clock in the evening of 14 March 1985, along Urbano Street, Pasig, Metro Manila, an owner-type jeep, then driven by petitioner, allegedly "hit and bumped" a tricycle then driven by Ernesto Reyes resulting in damage to the tricycle and injuries to Ernesto Reyes and Paulino Gonzal. 1 chanrobles virtual law library As a consequence thereof, two informations were filed against petitioner: (a) an Information for reckless imprudence resulting in damage to property with multiple physical injuries under Article 365 of the Revised Penal Code reading as follows: That on or about the 14th day of March, 1985, in the Municipality of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court the above-named accused, being then the driver and person in charge of an Owner Jeep Toyota bearing Plate No. NCC-313 UV Pilipinas '85, and without due regard to traffic laws, rules and regulations and without taking the necessary care and precautions to avoid damage to property and injuries to persond (sic), did, then and there willfully, unlawfully and feloniously drive, manage and opefate (sic) said Owner Jeep in a careless, reckless, negligent and imprudent manner, as a result of which said motor vehicle being then driven and operated by him, hit and bumped a tricycle SUZUki (sic) bearing Plate No. NA-6575 MC Pilipinas '85, driven by Ernesto Reyes y Esguerra and owned by Ernesto Antonel, thereby causing damage to the Suzuki tricycle in the amount of P7,845.00; and due to the impact the driver and the passengers of a (sic) tricycle Suzuki, sustained physical injuries which required medical attendance as stated opposite their respective names to wit: chanrobles virtual law library 1. Ernesto Reyes - More than thirty (30) days chanrobles virtual law library 2. Paulino Gonzal - More than thirty (30) days chanrobles virtual law library 3. Patricio Quitalig - Less than nine (9) days chanrobles virtual law library and incapacitated them from performing their customary labor for the same period of time. which was filed on 10 September 1985 with the Regional Trial Court of Pasig, Metro Manila and docketed therein as Criminal Case No. 64294 and assigned to Branch 68 thereof; and (b) an Information for violation of paragraph 2 of Article 275 of the Revised Penal Code on Abandonment of one's victim reading as follows: That on or about the 14th day of March, 1985, in the Municipality of Pasig, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, being the driver

ABANDONMENT OF ONES VICTIM


G.R. No. 93475 June 5, 1991

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of an owner-type jeep with Plate No. NCC-313 UV Pil. '85 which hit and bumped a motorized tricycle with Plate No. NA-6575-MC '85 driven by Ernesto Reyes and as a consequence of which Paulino Gonzal and Ernesto Reyes sustained physical injuries and lost consciousness, did then and there wilfully, unlawfully and feloniously abandoned (sic) them and failed (sic) to help or render assistance to them, without justifiable reason. which was filed on 14 November 1985 with the Metropolitan Trial Court of Pasig (Branch 71) and was docketed as Criminal Case No. 2793.chanroblesvirtualawlibrary chanrobles virtual law library On 29 June 1987 the Metropolitan Trial Court of Pasig rendered its decision in Criminal Case No. 2793 finding the petitioner guilty of the crime of Abandonment of one's victim as defined and penalized under paragraph 2 of Article 275 of the Revised Penal Code and sentenced him to suffer imprisonment for a period of six (6) months of arresto mayor and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner appealed from said Decision to the Regional Trial Court of Pasig, Metro Manila which docketed the appeal as Criminal Case No. 70648.chanroblesvirtualawlibrary chanrobles virtual law library In the meantime, on 27 April 1989, petitioner was arraigned in Criminal Case No. 64294 before Branch 68 of the Regional Trial Court of Pasig. He entered a plea of not guilty. 2 chanrobles virtual law library Petitioner's appeal, Criminal Case No. 70648, was decided on 31 July 1989. The court affirmed with modification the decision appealed from. The modification consisted merely in the reduction of the penalty of imprisonment from six (6) to two (2) months. 3 chanrobles virtual law library Still unsatisfied with the new verdict, petitioner filed with the Court of Appeals on 31 August 1989 a petition for its review, docketed as C.A.-G.R. CR No. 07351, assigning therein the following alleged errors: I chanrobles virtual law library THE RESPONDENT HON. JUDGED (SIC) ERRED IN AFFIRMING THE FINDING OF THE METROPOLITAN TRIAL COURT OF PASIG, METRO MANILA, THAT "THE TRICYCLE DRIVEN BY ERNESTO REYES WAS BUMPED BY THE JEEP DRIVEN BY THE PETITIONER." II chanrobles virtual law library THE RESPONDENT HON. JUDGE ERRED IN AFFIRMING THE FINDING OF THE METROPOLITAN TRIAL COURT OF PASIG. METRO MANILA, THAT THE PETITIONER, "LOSING PRESENCE OF MIND AS THE BLOODY SCENARIO WOULD INDUCE IN THE AVERAGE MOTORIST, HE (SIC) OPTED, PERHAPS INSTINCTIVELY TO HIDE IDENTITY, APPREHENSIVE MAY BE OVER THE ENORMITY OF HIS MISDEMEANOR AND THUS

DECIDED (SIC) TO WITHHOLD ASSISTANCE TO HIS FALLEN VICTIMS." III chanrobles virtual law library THE RESPONDENT HON. JUDGE ERRED IN DECLARING THAT, "AS THE PRESIDING JUDGE OF THE METROPOLITAN TRIAL COURT HAD THE OPPORTUNITY TO OBSERVE THE DEMEANOR OF THE WITNESSES, IT IS DIFFICULT TO DISMISS THE FINDINGS OF FACT OF SAID COURT GIVING CREDENCE TO PROSECUTION'S WITNESSES" FOR NOT BEING (SIC) SUPPORTED BY SUBSTANTIAL EVIDENCE AND CLEARLY THE LAW AND JURISPRUDENCE. IV chanrobles virtual law library THE RESPONDENT HON. JUDGED (SIC) ERRED IN AFFIRMING THE JUDGMENT OF THE METROPOLITAN TRIAL COURT OF PASIG, METRO MANILA, FINDING THE PETITIONER GUILTY OF THE CRIME OF ABANDONMENT UNDER ART. 275, PAR. 2, OF THE REVISED PENAL CODE AND SENTENCING HIM TO SUFFER THE PENALTY OF TWO (2) MONTHS AND ONE (1) DAY OF ARRESTO MAYOR AND TO PAY THE COSTS. V chanrobles virtual law library THE RESPONDENT HON. JUDGE ERRED IN NOT DECLARING NULL AND VOID ALL THE PROCEEDINGS IN THE METROPOLITAN TRIAL COURT OF PASIG AND ALL THE PROCEEDINGS BEFORE IT. 4 chanrobles virtual law library The Court of Appeals found no merit in the petition and dismissed it in its Decision promulgated on 9 November 1989. 5 Pertinently, it ruled: We cannot sustain the contention of the petitioner that par. 2 of Art. 275 of the Revised Penal Code does not apply to him since the evidence allegedly shows that it was Ernesto Reyes, the tricycle driver, who negligently caused the accident. Petitioner misses the import of the provision. The provision punishes the failure to help or render assistance to another whom the offender accidentally wounded or injured. Accidental means that which happens by chance or fortuitously, without intention and design and which is unexpected, unusual and unforeseen (Moreno, Phil. Law Dictionary, 1972 ed., p. 7 citing De La Cruz v. Capital Insurance & Surety Co., 17 SCRA 559). Consequently, it is enough to show that petitioner accidentally injured the passengers of the tricycle and failed to help or render them assistance. There is no need to prove that petitioner was negligent and that it was his negligence that caused the injury. If the factor of criminal negligence is involved, Article 365 of the Revised Penal Code will come into play. The last paragraph of Art. 365 provides that "the penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured party such help as may be in his bands to give." Petitioner was charged under par. 2 of Art. 275 not under Art. 365 of the Revised Penal Code. His motion to reconsider the above decision wherein he strongly urged for reconsideration because:

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xxx xxx xxx chanrobles virtual law library . . . We find it hard to visualize that the accused may be penalized twice for an "accident" and another for "recklessness", both of which arose from the same act. We submit that there could not be a valid charge under Article 275, when, as in the case at bar, there is already a pending charge for reckless imprudence under Article 365 of the Revised Penal Code. It is our view that the charge under Article 275 presupposes that there is no other charge for reckless imprudence. having been denied in the Resolution of 17 May 1990, 6 petitioner filed the instant petition. 7 chanrobles virtual law library Before Us he raises this sole issue: Could there be a valid charge for alleged abandonment under Article 275, par. 2 of the Revised Penal Code which provides as basis for prosecution. "2. Anyone who shall fail to help another whom he has accidentally wounded or injured" when, he was previously charged with "reckless imprudence resulting in damage to property with multiple physical injuries" under Article 265 (sic) of the Revised Penal Code? 8 chanrobles virtual law library He maintains the negative view and supports it with the argument that "[f]or the same act, that is, the vehicular collision, one could not be indicted in two separate informations at the same time based on "accident" and "recklessness', for there is a world of difference between "reckless imprudence" and "accidentally'." As expanded by him: . . . since petitioner is facing a criminal charge for reckless imprudence pending before Branch 68 of the Regional Trial Court of Pasig, Metro Manila . . . which offense carries heavier penalties under Article 365 of the Revised Penal Code, he could no longer be charged under Article 275, par. 2, for abandonment . . . for having allegedly failed "to help or render assistance to another whom he has accidentally wounded or injured". 9 chanrobles virtual law library In Our resolution of 1 August 1990 We required respondents to comment on the petition.chanroblesvirtualawlibrary chanrobles virtual law library In its Comment filed on 10 September 1990, respondent People of the Philippines, through the Office of the Solicitor General, putting the issue squarely, thus: . . . whether or not prosecution for negligence under Article 365 of the Revised Penal Code is a bar to prosecution for abandonment under Article 275 of the same Code. answers it in the negative because said Articles penalize different and distinct offenses. The rule on double jeopardy, which petitioner has, in effect, invoked, does not, therefore, apply pursuant to existing jurisprudence. Hence, the petition should be dismissed for lack of merit.chanroblesvirtualawlibrary chanrobles virtual law library

In Our resolution of 13 March 1991 We gave due course to the petition and required the parties to submit simultaneously their respective memoranda. Petitioner submitted his on 22 April 1991 10while the People moved that its Comment be considered as its memorandum.chanroblesvirtualawlibrary chanrobles virtual law library We agree with the Solicitor General that the petitioner is actually invoking his right against double jeopardy. He, however, failed to directly and categorically state it in his petition or deliberately obscured it behind a suggestion of possible resultant absurdity of the two informations. The reason seems obvious. He forgot to raise squarely that issue in the three courts below. In any case, to do so would have been a futile exercise. When he was arraigned, tried, and convicted in the Metropolitan Trial Court of Pasig in Criminal Case No. 2793, he was not yet arraigned in Criminal Case No. 64294 before the Regional Trial Court. As stated above, the judgment of conviction in the former was rendered on 29 June 1987, while his arraignment in the latter took place only on 27 April 1989. Among the conditions for double jeopardy to attach is that the accused must have been arraigned in the previous case. 11In People vs. Bocar, supra., We ruled: Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case was dismissed or otherwise terminated without the express consent of the accused. Moreover, he is charged for two separate offenses under the Revised Penal Code. In People vs. Doriquez, 12We held: It is a cardinal rule that the protection against double jeopardy may be invoked only for the same offense or identical offenses. A simple act may offend against two (or more) entirely distinct and unrelated provisions of law, and if one provision requires proof of an additional fact or element which the other does not, an acquittal or conviction or a dismissal of the information under one does not bar prosecution under the other. Phrased elsewhere, where two different laws (or articles of the same code) defines two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other. 13 chanrobles virtual law library In People vs. Bacolod, supra., from the act of firing a shot from a sub-machine gun which caused public panic among the people present and physical injuries to one, informations for physical injuries through reckless imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss the second on the ground of double jeopardy. We ruled: The protection against double jeopardy is only for the same offense. A simple act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does not, an acquittal or conviction under one does not bar prosecution under the other. Since the informations were for separate offenses - the first against a person and the second against public peace and order -

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one cannot be pleaded as a bar to the other under the rule on double jeopardy.chanroblesvirtualawlibrary chanrobles virtual law library The two informations filed against petitioner are clearly for separate offenses. The first, Criminal Case No. 64294, for reckless imprudence (Article 365), falls under the sole chapter (Criminal Negligence) of Title Fourteen (Quasi Offenses) of Book Two of the Revised Penal Code. The second, Criminal Case No. 2793, for Abandonment of one's victim (par. 2, Art. 275), falls under Chapter Two (Crimes Against Security) of Title Nine (Crimes Against Personal Liberty and Security) of Book Two of the same Code.chanroblesvirtualawlibrary chanrobles virtual law library Quasi offenses under Article 365 are committed by means of culpa. Crimes against Security are committed by means of dolo. 14 chanrobles virtual law library Moreover, in Article 365, failure to lend help to one's victim is neither an offense by itself nor an element of the offense therein penalized. Its presence merely increases the penalty by one degree. The last paragraph of the Article specifically provides: The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in hand to give. Such being the case, it must be specifically alleged in the information. The information against petitioner in this case does not so allege.chanroblesvirtualawlibrary chanrobles virtual law library Upon the other hand, failure to help or render assistance to another whom one has accidentally wounded or injured is an offense under paragraph 2 of Article 275 of the same code which reads: The penalty of arresto mayor shall be imposed upon: xxx xxx xxx chanrobles virtual law library 2. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured. The foregoing distinctions satisfy the guidelines We made in People vs. Relova, et al., 15wherein We held: It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The identity of offenses that must be shown need not be absolute identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a registration thereof. Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first

offense need be present in the technical definition of the second offense. The law here seeks to prevent harassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. Undoubtedly then, no constitutional, statutory or procedural obstacle barred the filing of the two informations against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, for lack of merit, the Petition is DENIED without pronouncements as to costs.chanroblesvirtualawlibrary chanrobles virtual law library SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

GRAVE THREATS
G.R. Nos. L-21528 and L-21529 March 28, 1969

ROSAURO REYES, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent. MAKALINTAL, J.: chanrobles virtual law library This case is before us on appeal by certiorari, from the decision of the Court of Appeals affirming that a the municipal court of Cavite City, convicting Rosauro Reyes of the crimes of grave threats and grave oral defamation, and sentencing him, in the first case (Criminal Case No. 2594), to four (4) months and ten (10) days of arresto mayor and to pay a fine of P300, with subsidiary imprisonment in case of insolvency; and in the second case (Criminal Case No. 2595), to an indeterminate penalty of from four (4) months of arresto mayor to one (1) year and eight (8) months of prison correccional and to pay Agustin Hallare the sum of P800 as moral damages, with costs in both cases.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner herein, Rosauro Reyes, was a former civilian employee of the Navy Exchange, Sangley Point, Cavite City, whose services were terminated on May 6, 1961. In the afternoon of June 6, 1961, he led a group of about 20 to 30 persons in a demonstration staged in front of the main gate of the United States Naval Station at Sangley Point. They carried placards bearing statements such as, "Agustin, mamatay ka;" "To, alla boss con Nolan;" "Frank do not be a common funk;" "Agustin, mamamatay ka rin"; "Agustin, Nolan for you;" "Agustin alla bos con Nolan;" "Agustin, dillega, el dia di quida rin bo chiquiting;" and others. The base commander, Capt. McAllister, called up Col. Patricia Monzon, who as Philippine Military Liaison Officer at Sangley Point was in charge of preserving harmonious relations between personnel of the naval station and the civilian population of Cavite City. Capt. McAllister requested Col. Monzon to join him at the main gate of the base to meet the demonstrators. Col. Monzon went to the place and talked to Rosauro Reyes and one Luis Buenaventura upon learning that the

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demonstration was not directed against the naval station but against Agustin Hallare and a certain Frank Nolan for their having allegedly caused the dismissal of Rosauro Reyes from the Navy Exchange, Col. Monzon suggested to them to demonstrate in front of Hallare's residence, but they told him that they would like the people in the station to know how they felt about Hallare and Nolan. They assured him, however, that they did not intend to use violence, as "they just wanted to blow off steam." chanrobles virtual law library At that time Agustin Hallare was in his office inside the naval station. When he learned about the demonstration he became apprehensive about his safety, so he sought Col. Monzon's protection. The colonel thereupon escorted Hallare, his brother, and another person in going out of the station, using his (Monzon's) car for the purpose. Once outside, Col. Monzon purpose slowed down to accommodate the request of Reyes. He told Hallare to take a good look at the demonstrators and at the placards they were carrying. When the demonstrators saw Hallare they shouted, "Mabuhay si Agustin." Then they boarded their jeeps and followed the car. One jeep overtook passed the car while the other to led behind. After Hallare and his companions had alighted in front of his residence at 967 Burgos St., Cavite City, Col. Monzon sped away.chanroblesvirtualawlibrary chanrobles virtual law library The three jeeps carrying the demonstrators parked in front of Hallare's residence after having gone by it twice Rosauro Reyes got off his jeep and posted himself at the gate, and with his right hand inside his pocket and his left holding the gate-door, he shouted repeatedly, "Agustin, putang ina mo. Agustin, mawawala ka. Agustin lumabas ka, papatayin kita." Thereafter, he boarded his jeep and the motorcade left the premises. Meanwhile, Hallare, frightened by the demeanor of Reyes and the other demonstrators, stayed inside the house.chanroblesvirtualawlibrary chanrobles virtual law library On the basis of the foregoing events Rosauro Reyes was charged on July 24 and 25, 1961 with grave threats and grave oral defamation, respectively (Criminal Cases Nos. 2594 and 2595, Municipal Court of Cavite City), as follows; The undersigned City Fiscal of the City of Cavite accuses Rosauro Reyes of the crime of Grave Threats, as defined by Article 282 of the Revised Penal Code and penalized by paragraph 2 of the same Article, committed as follows: chanrobles virtual law library That on or about June 6, 1961, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above named accused, did then and there, willfully, unlawfully and feloniously, orally threaten to kill, one Agustin Hallare. Contrary to law. Cavite City, July 24, 1961. DEOGRACIAS City Fiscal S. SOLIS

BY: (SGD.) BUEN N. GUTIERREZ Special Counsel chanrobles virtual law library The undersigned complainant, after being duly sworn to an oath in accordance with law, accuses Rosauro Reyes of the crime of Grave Oral Defamation, as defined and penalized by Article 358 of the Revised Penal Code, committed as follows: chanrobles virtual law library That on or about June 6, 1961, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above named accused, without any justifiable motive but with the intention to cause dishonor, discredit and contempt to the undersigned complainant, in the presence of and within hearing of several persons, did then and there, willfully, unlawfully and feloniously utter to the undersigned complainant the following insulting and serious defamatory remarks, to wit: "AGUSIN, PUTANG INA MO". which if translated into English are as follows: "Agustin, Your mother is a whore." Contrary to law. Cavite City, July 25, 1961. (SGD.) AGUSTIN HALLARE Complainant chanrobles virtual law library Subscribed and sworn to before me this. 25th day of July, 1961, in the City of Cavite, Philippines. (SGD.) BUEN Special Counsel N. GUTIERREZ

Upon arraignment, the accused pleaded not guilty to both charges and the cases were set for joint trial. On the day of the hearing the prosecution moved to amend the information in Criminal Case No. 2594 for grave threats by deleting therefrom the word "orally". The defense counsel objected to the motion on the ground that the accused had already been arraigned on the original information and that the amendment "would affect materially the interest of the accused." Nevertheless, the amendment was allowed and the joint trial proceeded.chanroblesvirtualawlibrary chanrobles virtual law library From the judgment of conviction the accused appeal to the Court of Appeals, which returned a verdict of affirmance. A motion for reconsideration having been denied, the accused brought this appeal by certiorari.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner avers that the Court of Appeals erred: (1) in affirming the proceedings in the lower court allowing the substantial amendment of the information for grave threats after petitioner had been arraigned on the original information; (2) in proceeding with the trial of the case of grave threats without first requiring petitioner to enter his plea on the amended information; (3) in convicting petitioner of both offenses when he could legally be convicted of only one offense, thereby putting him in jeopardy of being penalized twice for the same offense; (4) in convicting

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petitioner of grave threats when the evidence adduced and considered by the court tend to establish the offense of light threats only; and (5) in convicting petitioner of grave oral defamation when the evidence tend to establish that of simple slander only.chanroblesvirtualawlibrary chanrobles virtual law library On the first error assigned, the rule is that after the accused has pleaded the information may be amended as to all matters of form by leave and at the discretion of the court when the same can be done without prejudice to the rights of the defendant (Section 13, Rule 110, New Rules of Court). Amendments that touch upon matters of substance cannot be permitted after the plea is entered.chanroblesvirtualawlibrary chanrobles virtual law library After a careful consideration of the original information, we find that all the elements of the crime of grave threats as defined in Article 282 1 of the Revised Penal Code and penalized by its paragraph 2 were alleged therein namely: (1) that the offender threatened another person with the infliction upon his person of a wrong; (2) that such wrong amounted to a crime; and (3) that the threat was not subject to a condition. Hence, petitioner could have been convicted thereunder. It is to be noted that under the aforementioned provision the particular manner in which the threat is made not a qualifying ingredient of the offense, such that the deletion of the word "orally" did not affect the nature and essence of the crime as charged originally. Neither did it change the basic theory of the prosecution that the accused threatened to kill Rosauro Reyes so as to require the petitioner to undergo any material change or modification in his defense. Contrary to his claim, made with the concurrence of the Solicitor General, petitioner was not exposed after the amendment to the danger of conviction under paragraph 1 of Article 282, which provides for a different penalty, since there was no allegation in the amended information that the threat was made subject to a condition. In our view the deletion of the word "orally" was effected in order to make the information conformable to the evidence to be presented during the trial. It was merely a formal amendment which in no way prejudiced petitioner's rights.chanroblesvirtualawlibrary chanrobles virtual law library Petitioner next contends that even assuming that the amendment was properly allowed, the trial court committed a reversible error in proceeding with the trial on the merits without first requiring him to enter his plea to the amended information. Considering, however, that the amendment was not substantial, no second plea was necessary at all.chanroblesvirtualawlibrary chanrobles virtual law library The third and fourth issues are related and will be discussed together. Petitioner avers that the appellate court erred in affirming the decision of the trial court erred in affirming him of grave threats and of grave oral defamation when he could legally be convicted of only one offense, and in convicting him of grave threats at all when the evidence adduced and considered by the court indicates the commission of light threats only.chanroblesvirtualawlibrary chanrobles virtual law library The demonstration led by petitioner Agustin Hallare in front of the main gate of the naval station; the fact that placards with

threatening statements were carried by the demonstrators; their persistence in trailing Hallare in a motorcade up to his residence; and the demonstration conducted in front thereof, culminating in repeated threats flung by petitioner in a loud voice, give rise to only one conclusion: that the threats were made "with the deliberate purpose of creating in the mind of the person threatened the belief that the threat would be carried into effect." 2 Indeed, Hallare became so apprehensive of his safety that he sought the protection of Col. Monzon, who had to escort him home, wherein he stayed while the demonstration was going on. It cannot be denied that the threats were made deliberately and not merely in a temporary fit of anger, motivated as they were by the dismissal of petitioner one month before the incident. We, therefore, hold that the appellate court was correct in upholding petitioner's conviction for the offense of grave threats.chanroblesvirtualawlibrary chanrobles virtual law library The charge of oral defamation stemmed from the utterance of the words, "Agustin, putang ina mo". This is a common enough expression in the dialect that is often employed, not really to slander but rather to express anger or displeasure. It is seldom, if ever, taken in its literal sense by the hearer, that is, as a reflection on the virtues of a mother. In the instant case, it should be viewed as part of the threats voiced by appellant against Agustin Hallare, evidently to make the same more emphatic. In the case of Yebra, G.R. No. L-14348, Sept. 30, 1960, this Court said: The letter containing the allegedly libelous remarks is more threatening than libelous and the intent to threaten is the principal aim and object to the letter. The libelous remarks contained in the letter, if so they be considered, are merely preparatory remarks culminating in the final threat. In other words, the libelous remarks express the beat of passion which engulfs the writer of the letter, which heat of passion in the latter part of the letter culminates into a threat. This is the more important and serious offense committed by the accused. Under the circumstances the Court believes, after the study of the whole letter, that the offense committed therein is clearly and principally that of threats and that the statements therein derogatory to the person named do not constitute an independent crime of libel, for which the writer maybe prosecuted separately from the threats and which should be considered as part of the more important offense of threats. The foregoing ruling applies with equal force to the facts of the present case.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the decision appealed from is hereby reversed and petitioner is acquitted, with costs de oficio, insofar as Criminal Case No. 2595 of the Court a quo (for oral defamation) is concerned; and affirmed with respect to Criminal Case No. 2594, for grave threats, with costs against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Santos, Sanchez, Fernando, Teehankee and Barredo, JJ., concur. Castro and Capistrano, JJ., took no part. G.R. No. 171511 March 4, 2009

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RONNIE CALUAG, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION QUISUMBING, J.:

Petitioner,

Upon arraignment, Caluag and Sentillas pleaded not guilty. Thereafter, joint trial ensued. The prosecution presented the two private complainants, the spouses Nestor and Julia Denido, as witnesses. Their version of the facts are as follows: In the afternoon of March 19, 2000, around 4 oclock8 in the afternoon, Nestor learned that two of his guests from an earlier drinking spree were mauled. At that time, Caluag and Sentillas were drinking at the store owned by the son of Sentillas. When Nestor inquired from several people including his own son Raymond what happened, Caluag butted in and replied, "Bakit kasama ka ba roon?," and immediately boxed him without warning. Nestor retaliated but he was overpowered by Caluag and Sentillas. Julia saw Caluag and Sentillas box her husband. Although she tried to pacify them, they did not listen to her. To avoid his assailants, Nestor ran to his house. Julia followed him. At around 6:00 p.m., Nestor told his wife to report the boxing incident to the barangay authorities.9 Later, at around 7:30 in the evening, when Julia and her son Rotsen were on their way to their barangay hall, she encountered Caluag, who blocked her way at the alley near her house. Caluag confronted Julia with a gun, poked it at her forehead, and said "Saan ka pupunta, gusto mo ito?"10 Despite this fearful encounter, she was still able to proceed to the barangay hall where she reported the gun-poking incident to the barangay authorities.11 For its part, the defense presented the accused Caluag and Sentillas; and the barbecue vendor Pablo Barrameda, Jr. as witnesses. According to them, in the afternoon of March 19, 2000 at around 6 oclock in the evening, Caluag was on his way home with his three-year old son when Nestor, drunk and unruly, blocked his way and asked him, "Pare, galit ka ba sa akin?" He answered in the negative but Nestor persisted in his questioning and would not allow him to pass through. Annoyed, he told Nestor, "Hindi nga! Ang kulit kulit mo!" Nestor then boxed him on his face which caused him to fall down. Caluag first assured himself of the safety of his son and then punched Nestor back. As people around pacified them, he was led to the store owned by the son of Sentillas. Nestor pursued him and punched him again. As he retaliated, some bystanders separated them. Nestor then shouted, "Putang ina mo, Pare! Gago ka! Gago ka! Marami ka ng taong niloko!" Thereafter, an unidentified man from the crowd armed with a knife went towards Nestor but Sentillas timely interceded and pacified the man. Sentillas never boxed Nestor. Caluag also denied poking a gun at Julia.12 In a Joint Decision dated January 28, 2004, the MeTC found Caluag and Sentillas guilty of slight physical injuries, and Caluag guilty of grave threats. The MeTC relied on Nestors testimony. It noted that Nestor did not deny that he was drunk at the time of the incident while Caluag admitted that he got annoyed by Nestors attitude. The MeTC concluded that Caluag and Sentillas lost control of their tempers due to Nestors unruly behavior. On the other hand, the MeTC noted that Julia did not waste time reporting the gunpoking incident to the barangay. While she had intended to report the mauling of her husband, as he instructed her, what she

For review on certiorari are the dated December 9, 2005 of the Court of Appeals in CA-G.R. CR No. 28707 and its Resolution2 dated February 15, 2006, denying reconsideration. The appellate court had affirmed the Decision3 dated August 3, 2004 of the Regional Trial Court (RTC) of Las Pias City, Branch 198, in Criminal Case No. 04-0183-84, which affirmed the Joint Decision4 dated January 28, 2004 of the Metropolitan Trial Court (MeTC) of Las Pias City, Branch 79, in Criminal Cases Nos. 47358 and 47381 finding petitioner Ronnie Caluag and Jesus Sentillas guilty of slight physical injuries and Ronnie Caluag guilty of grave threats. The factual antecedents of this case are as follows: On May 18 and 23, 2000, two separate Informations5 docketed as Criminal Cases Nos. 47381 and 47358, respectively, were filed against Caluag and Sentillas. The Information in Criminal Case No. 47381 charged Caluag and Sentillas with slight physical injuries committed as follows: That on or about the 19th day of March, 2000, in the City of Las Pias, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, and both of them mutually helping and aiding one another did then and there willfully, unlawfully and feloniously attack, assault, and employ personal violence upon the person of NESTOR PURCEL DENIDO, by then and there mauling him, thereby inflicting upon him physical injuries which required medical attendance for less than nine (9) days and incapacitated him from performing his customary labor for the same period of time. CONTRARY TO LAW.6 The Information in Criminal Case No. 47358 charged Caluag with grave threats committed as follows: That on or about the 19th day of March 2000, in the City of Las Pias, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, moved by personal resentment which he entertained against one JULIA LAVIAL DENIDO, did then and there willfully, unlawfully and feloniously threaten said JULIA LAVIAL DENIDO with the infliction on her person of a harm amounting to a crime, by then and there poking his gun at her forehead and uttering the following words in tagalog, to wit: "Saan ka pupunta gusto mo ito?" thereby causing said complainant to be threatened. CONTRARY TO LAW.7

Decision1

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reported instead was what happened to her. With such straightforward and seemingly natural course of events, the MeTC was convinced that the negative assertions of Caluag and Sentillas cannot prevail over the positive testimonies of Nestor and Julia. The decretal portion of the joint decision reads: WHEREFORE, all the foregoing premises considered, the Court finds and declares accused RONNIE CALUAG AND JESUS S[E]NTILLAS GUILTY beyond reasonable doubt of the offense of Slight Physical Injuries under Criminal Case No. 47381, and sentences them to pay [a] fine of P200.00 each. The two (2) accused are also censured to be more complaisant and well-bred in dealing with people. The Court also finds accused RONNIE CALUAG guilty beyond reasonable doubt of the offense of Grave Threats under Article 282, par. 2 of the Revised Penal Code, under Criminal Case No. 47358, and sentences him to suffer two (2) months imprisonment [and to] pay [a] fine of P200.00. Criminal Case No. 47382, as earlier explained, is ordered dismissed being merely a duplication of Criminal Case No. 47358. SO ORDERED.13 Caluag and Sentillas appealed to the RTC which affirmed in toto the joint decision of the MeTC. On appeal, the Court of Appeals affirmed the decision of the RTC on December 9, 2005. The appellate court noted that the MeTC gave credence to the testimonies of Nestor and Julia because they were in accord with the natural course of things. Likewise, petitioners negative assertions cannot prevail over the positive testimonies of Nestor and Julia. The appellate court disregarded the purported inconsistencies in the testimonies of Nestor and Julia since these refer to collateral matters and not to the essential details of the incident.1avvphi1 Dissatisfied, petitioner appealed to this Court on the ground that the Court of Appeals: I. MANIFESTLY OVERLOOKED CERTAIN RELEVANT FACTS NOT DISPUTED BY THE PARTIES AND WHICH, IF PROPERLY CONSIDERED WOULD JUSTIFY A DIFFERENT CONCLUSION; II. ERRED IN AFFIRMING THE FINDINGS OF THE [MeTC] WHICH MADE INFERENCES OR CONCLUSIONS IN ITS JOINT DECISION THAT ARE MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE AND WHICH ARE GROUNDED ENTIRELY ON SPECULATIONS, SURMISES OR CONJECTURES OR ARE BASED ON A MISAPPREHENSION OF FACTS; III.

ERRED IN RULING THAT THE PETITIONER HEREIN IS GUILTY OF THE OFFENSES CHARGED BEYOND A REASONABLE DOUBT.14 Simply, the issue is: Was there sufficient evidence to sustain petitioners conviction of slight physical injuries and of grave threats? Petitioner contends that he was able to present Barrameda, an independent and impartial witness, who supported his version of events and debunked those of Nestor and Julia. Contrary to the findings of the lower courts that petitioner offered mere denials, Barramedas testimony is actually a positive statement that should have been given full credit. Petitioner also argues that although the lower courts acknowledged that Nestor was drunk and troublesome at the time of the incident, they chose to believe his testimony rather than petitioners. Petitioner adds that there is no basis for the lower courts to conclude that he lost his temper because of Nestors unruly behavior. Petitioner maintains that just because Julia immediately reported the gun-poking incident to the barangay, this did not necessarily mean that it actually happened. Petitioner also argues that assuming that he did poke a gun at Julia, the crime committed was other light threats as defined under Article 285, paragraph 1 of the Revised Penal Code.15 For the respondent, the Office of the Solicitor General (OSG) counters that the MeTC did not err in giving credence to the testimonies of Nestor and Julia. The MeTC found that the positive assertions of Nestor and Julia, their straightforward manner of testifying, and the seemingly natural course of events, constituted the more plausible and credible version. The MeTC also noted that Julia did not waste time reporting the gun-poking incident to the barangay authorities immediately after it happened. The OSG also agrees with the MeTC that petitioner lost his temper, given the unruly behavior of Nestor. We find the petition with insufficient merit and accordingly sustain petitioners conviction. At the outset, it must be stressed that petitioner raises questions of fact. Certainly, such matters mainly require a calibration of the evidence or a determination of the credibility of the witnesses presented by the parties and the existence and relevancy of specific surrounding circumstances, their relation to each other and to the whole, and the probabilities of the situation.16 The well-entrenched rule is that only errors of law and not of fact are reviewable by this Court in petitions for review on certiorari under Rule 45 under which this petition is filed. It is not the Courts function under Rule 45 to review, examine and evaluate or weigh once again the probative value of the evidence presented.17 Moreover, findings of fact of the trial court, when affirmed by the Court of Appeals, are binding upon this Court. It is not the function of this Court to weigh anew the evidence already passed upon by the Court of Appeals for these are deemed final and conclusive and may no longer be reviewed on appeal.18

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A departure from the general rule, however, may be warranted where the findings of fact of the Court of Appeals are contrary to the findings and conclusions of the trial court, or when the same is unsupported by the evidence on record. Nevertheless, we find that there is no ground to apply the exception in the instant case because the findings and conclusions of the Court of Appeals are in full accord with those of the MeTC and the RTC. This Court will not assess and evaluate all over again the evidence, both testimonial and documentary, adduced by the parties to the appeal particularly where, as in this case, the findings of the MeTC, the RTC and the Court of Appeals completely coincide.19 Even if the Court relaxes the abovecited general rule and resolves the petition on the merits, we still find no reversible error in the appellate courts ruling. As the lower courts and the Court of Appeals correctly stated, the testimonies of Nestor and Julia were more in accord with the natural course of things. There could be no doubt that Caluag and Sentillas lost control of their temper as Caluag himself admitted that he got annoyed by Nestors unruly behavior. Likewise, the gun-poking incident also happened since Julia did not waste time in reporting it to the barangay authorities. Instead of reporting the mauling of her husband, she reported what happened to her in her hurry, excitement and confusion. Indeed, the positive declarations of Nestor and Julia that petitioner committed the acts complained of undermined his negative assertions. The fact that Barrameda testified in petitioners behalf cannot be given more weight than the straightforward and credible statements of Nestor and Julia. Indeed, we find they had no reason to concoct stories to pin down petitioner on any criminal act, hence their testimonies deserve full faith and credit. The MeTC, the RTC and the Court of Appeals uniformly found petitioner guilty of grave threats under Article 282, par. 2 of the Revised Penal Code and sentenced him to suffer two months of imprisonment and to pay a fine of P200. We find no reason to reverse the findings and conclusions of the MeTC and RTC, as affirmed by the Court of Appeals. Under the Revised Penal Code, there are three kinds of threats: grave threats (Article 282), light threats (Article 283) and other light threats (Article 285). These provisions state: Art. 282. Grave threats. Any person who shall threaten another with the infliction upon the person, honor or property of the latter or of his family of any wrong amounting to a crime, shall suffer: 1. The penalty next lower in degree than that prescribed by law for the crime he threatened to commit, if the offender shall have made the threat demanding money or imposing any other condition, even though not unlawful, and said offender shall have attained his purpose. If the offender shall not have attained his purpose, the penalty lower by two degrees shall be imposed. If the threat be made in writing or through a middleman, the penalty shall be imposed in its maximum period.

2. The penalty of arresto mayor and a fine not exceeding 500 pesos, if the threat shall not have been made subject to a condition. Art. 283. Light threats. Any threat to commit a wrong not constituting a crime, made in the manner expressed in subdivision 1 of the next preceding article, shall be punished by arresto mayor. Art. 285. Other light threats. The penalty of arresto menor in its minimum period or a fine not exceeding 200 pesos shall be imposed upon: 1. Any person who, without being included in the provisions of the next preceding article, shall threaten another with a weapon or draw such weapon in a quarrel, unless it be in lawful self-defense. 2. Any person who, in the heat of anger, shall orally threaten another with some harm not constituting a crime, and who by subsequent acts show that he did not persist in the idea involved in his threat, provided that the circumstances of the offense shall not bring it within the provisions of Article 282 of this Code. 3. Any person who shall orally threaten to do another any harm not constituting a felony. In grave threats, the wrong threatened amounts to a crime which may or may not be accompanied by a condition. In light threats, the wrong threatened does not amount to a crime but is always accompanied by a condition. In other light threats, the wrong threatened does not amount to a crime and there is no condition. The records show that at around 7:30 in the evening, Julia Denido left her house to go to the barangay hall to report the mauling of her husband which she witnessed earlier at around 4:00 oclock in the afternoon. On her way there, petitioner confronted her and pointed a gun to her forehead, while at the same time saying "Saan ka pupunta, gusto mo ito?"20 Considering what transpired earlier between petitioner and Julias husband, petitioners act of pointing a gun at Julias forehead clearly enounces a threat to kill or to inflict serious physical injury on her person. Actions speak louder than words. Taken in the context of the surrounding circumstances, the uttered words do not go against the threat to kill or to inflict serious injury evinced by petitioners accompanying act. Given the surrounding circumstances, the offense committed falls under Article 282, par. 2 (grave threats) since: (1) killing or shooting someone amounts to a crime, and (2) the threat to kill was not subject to a condition. Article 285, par. 1 (other light threats) is inapplicable although it specifically states, "shall threaten another with a weapon or draw such weapon in a quarrel", since it presupposes that the threat to commit a wrong will not constitute a crime. That the threat to commit a wrong will constitute or not constitute a crime is the distinguishing factor between grave threats on one hand, and light and other light threats on the other.

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WHEREFORE, the petition is DENIED for utter lack of merit. The Decision dated December 9, 2005 and the Resolution dated February 15, 2006 of the Court of Appeals in CA-G.R. CR No. 28707 are AFFIRMED. Costs against petitioner. SO ORDERED.

others for judicial abatement of their stalls. The complaint, docketed as Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as nuisances per se. Dayaon was never able to reopen his barbershop business. Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the offense of grave coercion before the Municipal Court of Daet. As already noted, the said court exonerated the two policemen, but convicted petitioner of the crime charged as principal by inducement. On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the present recourse. Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public nuisance and, therefore, under lawful authority. We find merit in this contention. Unquestionably, the barbershop in question did constitute a public nuisance as defined under Article Nos. 694 and 695 of the Civil Code, to wit: t.hqw ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which: (1) Injures or endangers the health or safety of others; or (2) Annoys or offends the senses; or (3) Shocks, defies or disregards decency or morality; or (4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property. ART. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal A private nuisance is one that is not included in the foregoing definition. The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had been recommended for closure by the Municipal Health Officer. In fact, the Court of First Instance of Camarines Norte, in its decision in Civil Case No. 2257, declared said barbershop as a nuisance per-se. Thus: t.hqw Under the facts of the case, as well as the law in point, there is no semblance of any legality or right that exists in favor of the defendants to build a stall and conduct their business in a sidewalk, especially in a highway where it does not only constitute a menace to the health of the general public passing through the street and also of the unsanitary condition that is bred therein as well

GRAVE COERCION
G.R. No. L-62050 November 25, 1983 JOSE "PEPITO" TIMONER, petitioner, vs. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV DIVISION, respondents. ESCOLIN, J.:+.wph!1 Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate Appellate Court, of the judgment of conviction handed down by the then Municipal Court of Daet, Camarines Norte, in Criminal Case No. 4281, entitled People of the Philippines vs. Jose Timoner, finding petitioner guilty of the crime of grave coercion, as follows: t.hqw WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond reasonable doubt of the crime of Grave Coercion as penalized under Art. 286 in the Revised Penal Code, and hereby sentences the said accused pursuant to the provision of Rule 64, Par. 3, to suffer SIX MONTHS OF IMPRISONMENT OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay the offended party in the amount of P5,000.00 as damages, without subsidiary liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO QUIBRAL are hereby ordered ACQUITTED. The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971, petitioner, then Mayor of Daet, Camarines Norte, accompanied by two uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers, arrived in front of the stalls along Maharlika highway, the main thoroughfare of the same town. Upon orders of petitioner, these laborers proceeded to nail together rough lumber slabs to fence off the stalls which protruded into the sidewalk of the Maharlika highway. Among the structures thus barricaded were the barbershop of Pascual Dayaon, the complaining witness and the store belonging to one Lourdes Pia-Rebustillos. These establishments had been recommended for closure by the Municipal Health Officer, Dra. Alegre, for non-compliance with certain health and sanitation requirements. Thereafter, petitioner filed a complaint in the Court of First Instance of Camarines Norte against Lourdes Pia-Rebustillos and

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as the unsightly and ugly structures in the said place. Moreover, even if it is claimed and pretended that there was a license, permit or toleration of the defendants' makeshift store and living quarters for a number of years does not lend legality to an act which is a nuisance per se. Such nuisance affects the community or neighborhood or any considerable number of persons and the general public which posed a danger to the people in general passing and using that place, for in addition, this is an annoyance to the public by the invasion of its rights the fact that it is in a public place and annoying to all who come within its sphere [Baltazar vs. Carolina Midland, Ry, Co., 54 S.C. 242, 32 SB 258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod ng Bayan, Inc. vs. Lacson, CA-G.R. No. 27260R, March 25, 1964; 61 O.G. 2487]. xxx xxx xxx ... IN VIEW OF THE FOREGOING, the Court hereby declares that the structures subject of this complaint as well as those occupied by the impleaded defendants are nuisances per se and therefore orders the defendants to demolish the stall and vacate the premises immediately ... But even without this judicial pronouncement, petitioner could not have been faulted for having fenced off said barbershop. Paragraph 3, Article 699 of the Civil Code authorizes the abatement of a public nuisance without judicial proceedings. t.hqw ART. 699. The remedies against a public nuisance are: [l] A prosecution under the Penal Code or any local ordinance; or [2] A civil action; or [3] Abatement, without judicial proceedings. In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid recommendation of the Municipal Health Officer. Having then acted in good faith in the performance of his duty, petitioner incurred no criminal liability. Grave coercion is committed when "a person who, without authority of law, shall by means of violence, prevent another from doing something not prohibited by law or compel to do something against his will, either it be right or wrong." 1 The three elements of grave coercion are: [1] that any person be prevented by another from doing something not prohibited by law, or compelled to do something against his will, be it right or wrong; [2] that the prevention or compulsion be effected by violence, either by material force or such display of it as would produce intimidation and control the will of the offended party, and [3] that the person who restrained the will and liberty of another had no right to do so, or, in other words, that the

restraint was not made under authority of law or in the exercise of a lawful right. 2 The third element being absent in the case at bar, petitioner cannot be held guilty of grave coercion. WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 19534-CR, is hereby set aside and petitioner is acquitted of the crime charged. Costs de oficio. SO ORDERED.1wph1.t G.R. No. 90423 September 6, 1991 FRANCIS LEE, petitioner, vs. COURT OF APPEALS, PEOPLE OF THE PHILIPPINES AND PELAGIA PANLINO DE CHIN, respondents. Arturo S. Santos for petitioner.

MEDIALDEA, J.:p This is a petition for review on certiorari to set aside the decision of the Court of Appeals dated June 29, 1989 which reversed the decision of the Regional Trial Court (RTC), National Capital Judicial Region, Branch 129 at Caloocan City, Metro Manila, and reinstated as well as affirmed in toto the decision of the Metropolitan Trial Court (MTC), Branch 2, same city. The RTC decision found the petitioner guilty of the crime of light coercion, the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING, the judgment appealed from is hereby modified. The accused Francis Lee is hereby found guilty beyond reasonable doubt of the crime of light coercion, as penalized under paragraph 2 of Article 287 of the Revised Penal Code and he is hereby sentenced to suffer a penalty of TWENTY (20) DAYS of ARRESTO MENOR and to pay one-third (1/3) of the costs. (p. 40, Rollo) On the other hand, the MTC decision convicted the petitioner of the offense of grave coercion, the pertinent portion of the same is hereby quoted as follows: WHEREFORE, premises considered, the Court finds the accused Francis Lee, guilty beyond reasonable doubt of the offense of Grave Coercion, as charged, defined and penalized under Art. 286 of the Revised Penal Code, and is hereby sentenced to suffer an imprisonment of THREE (3) MONTHS, of arresto mayor, medium, and to pay a fine of P250.00, with cost. The accused is further ordered to indemnify the offended party, Pelagia Paulino de Chin, by way of civil liability the sum of P5,000.00 as moral damages and the sum of P2,000.00 as exemplary damages.

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... (p. 33, Rollo) The facts as stated by the respondent Court of Appeals are undisputed, thus: At about 10:00 o'clock in the morning of June 20, 1984, the complainant Maria Pelagia Paulino de Chin, 23 years old, was fetched from her house at 112 BLISS Site, 8th Avenue, Caloocan City by Atanacio Lumba, a bank employee, upon the instruction of the petitioner Branch Manager Francis Lee of Pacific Banking Corporation (hereinafter referred to as bank). Upon arriving at the office of Pacific Banking Corporation located at Caloocan City, petitioner Francis Lee did not attend to her immediately. After an hour later, the petitioner confronted the complainant about a forged Midland National Bank Cashier Check No. 3526794, which the latter allegedly deposited in the account of Honorio Carpio. During the said confrontation, the petitioner Francis Lee was shouting at her with piercing looks and threatened to file charges against her unless and until she returned all the money equivalent of the subject cashier check. Accordingly, the complainant was caused to sign a prepared withdrawal slip, and later, an affidavit prepared by the bank's lawyer, where she was made to admit that she had swindled the bank and had return the money equivalent of the spurious check. During her stay at the said bank, the complainant, who was five (5) months in the family way, was watched by the bank's employees and security guards. It was about six o'clock in the afternoon of the same day when the complainant was able to leave the bank premises. Upon the other hand, the petitioner, 37 years old, presented his version, basically a denial of the charges, to wit: he was the Branch Bank Manager of Pacific Banking Corporation. After having been informed that Midland National Bank Cashier Check No. 3526794 was dishonored for being spurious, he examined the relevant bank records and discovered that complainant Maria Pelagia Paulino de Chin was instrumental in inducing their bank to accept the subject dollar check and was also the one who withdrew the proceeds thereof, by utilizing a withdrawal slip purportedly signed by Honorio Carpio. Petitioner, thru Atanacio Lumba, invited the complainant to his office. Responding to his invitation, the complainant arrived at the bank before noon of June 20, 1984, but was not attended to immediately as the petitioner had to attend to other bank clients. The complainant was merely informed about the subject fake dollar check that was deposited with said bank upon her assurance that it was genuine. The complainant was not compelled into signing the withdrawal slip, but she acted freely and voluntarily in executing her affidavit and in returning the money equivalent of the subject check. There was nothing unusual during her lengthy stay in the bank. (pp. 44-45, Rollo) The sole issue posed in this petition is whether or not the acts of petitioner in simply "shouting at the complainant with piercing

looks" and "threats to file charges against her" are sufficient to convict him of the crime of grave coercion (p. 6, Rollo). Article 286 of the Revised Penal Code provides: ART. 286. Grave coercions. The penalty of arresto mayor and a fine not exceeding 500 pesos shall be imposed upon any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong. If the coercion be committed for the purpose of compelling another to perform any religious act or to prevent him from so doing, the penalty next higher in degree shall be imposed. Considering that the present case does not involve violence but intimidation, the provisions of Article 1335 of the New Civil Code on intimidation are relevant. It states: Art. 1335. ... There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of the intimidation, the age, sex and condition of the person shall be borne in mind. A threat to enforce once's claim through competent authority, if the claim is just or legal, does not vitiate consent. As a general rule, the findings of facts of the Court of Appeals command utmost respect. However, such findings are disregarded if there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted that, if considered, would affect the result of the case (see San Sebastian College v. Court of Appeals, et al., G.R. No. 84401, May 15, 1991). While the appellate court emphasized the pregnancy and feminine gender of the complainant, it overlooked other significant personal circumstances which are material in determining the presence of coercion in this case. The records show that complainant is a highly educated person who is familiar with banking procedures. She is a graduate of Business Administration major in Banking and Finance from NCBA. She also finished one semester of MA in graduate school. In 1983, complainant worked with the Insular Bank of Asia and America as a bank teller (TSN, November 20, 1984, pp. 5-7; Records, pp. 96-98).

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Likewise, it appears that complainant actively participated in the deposit and withdrawal of the proceeds of the controversial check. We find that she told Honorio Carpio (Carpio, for short), a relative and payee of the check; to open a savings account with the Pacific Banking Corporation (Bank, for short) and accompanied him; that subsequently, she presented a Midland National Bank Cashier's check payable to Carpio in the sum of $5,200.00 to Mr. Lamberto R. Cruz (Cruz, for short), PRO Manager, Foreign Department; that she claimed that she was requested by her uncle to deposit the check for collection; that she was a bank depositor and she "knew somebody downstairs"; that she assured Cruz that the check would be honored between banks (TSN, April 15, 1985, pp. 89-92; Records, 180-183); that on June 11, 1984, the bank, after the usual clearing period, sent out a notice to Carpio that the proceeds of the check were already credited to his account but the same was returned to the bank because the address was false or not true; that the total amount of the check in pesos was P92,557.44; that the total deposit of Carpio was P92,607.44, his initial deposit of P50.00 being added to the amount of the check; that on the same day, complainant personally inquired from the bank whether the proceeds of the check have already been credited to Carpio's account (TSN, June 11, 1985, p. 163, records, p. 163); that upon an affirmative answer, the bank records show that on that day, the complainant withdrew the sum of P12,607.00 thru a withdrawal slip purportedly signed by Carpio; that in the interim, Carpio allegedly left abroad (Annex C, p. 17, Records); that on June 13, 1984, she withdrew the sum of P80,000.44 from Carpio's account by means of a withdrawal slip allegedly signed by Carpio and then, she closed his account; that out of the said amount, she redeposited the sum of P50,000.00 to her own savings account and received in cash the remaining balance of P30,000.44; and on June 15 and 18, 1984, complainant withdrew the amounts of P2,000.00 and P18,000.00, respectively from her savings account (Exh. "3", Records, p. 15, in relation to TSN, October 8, 1985, pp. 194-195, Records, pp. 286-287). In the light of the foregoing circumstances, petitioner's demand that the private respondent return the proceeds of the check accompanied by a threat to file criminal charges was not improper. There is nothing unlawful on the threat to sue. In the case of Berg v. National City Bank of New York (102 Phil. 309, 316), We ruled that: ... It is a practice followed not only by banks but even by individuals to demand payment of their accounts with the threat that upon failure to do so an action would be instituted in court. Such a threat is proper within the realm of the law as a means to enforce collection. Such a threat cannot constitute duress even if the claim proves to be unfounded so long as the creditor believes that it was his right to do so. The Solicitor General argues that the complainant was intimidated and compelled into disclosing her time deposit, signing the typewritten withdrawal slip and the affidavit by the petitioner's threat to detain her at the bank. At this point, there is a need to make a distinction between a case where a person gives his consent reluctantly and against his good sense and judgment and where he gives no consent at all, as

where he acts against his will under a pressure he cannot resist. Thus, in Vales v. Villa (35 Phil. 769, 789), We ruled: ... It is clear that one acts as voluntarily and independently in the eye of the law when he acts reluctantly and with hesitation as when he acts spontaneously and joyously. Legally speaking he acts as voluntarily and freely when he acts wholly against his better sense and judgment as when he acts in conformity with them. Between the two acts there is no difference in law. But when his sense, judgment, and his will rebel and he refuses absolutely to act as requested, but is nevertheless overcome by force or intimidation to such an extent that he becomes a mere automaton and acts mechanically only, a new element enters, namely, a disappearance of the personality of the actor. He ceases to exist as an independent entity with faculties and judgment, and in his place is substituted another the one exercising the force or making use of the intimidation. While his hand signs, the will which moves it is another's. While a contract is made, it has, in reality and in law, only one party to it; and, there being only one party, the one using the force or the intimidation, it is unenforceable for lack of a second party. From these considerations it is clear that every case of alleged intimidation must be examined to determine within which class it falls. If it is within the first class it is not duress in law, if it falls in the second, it is. The circumstances of this case reveal that the complainant, despite her protestations, indeed voluntarily, albeit reluctantly, consented to do all the aforesaid acts. Bearing in mind her involvement in the deposit and encashment of the check, the complainant admitted to being nervous upon being informed that the check was spurious (TSN, November 20, 1984, p. 15; Record, p. 106) We find that complainant's lengthy stay at the bank was not due to the petitioner's threat. It was rather due to her desire to prove her innocence. Her testimony on this point is a revelation: Atty. Dizon: (counsel for petitioner) You are always talking of signing the withdrawal slip by force, is it not that earlier you admitted that no actual force was employed upon you in connection with the signing of this document and the force that you are claiming was the alleged shouting against you coupled with the statement that you could not leave? A Yes, sir. Q When Mr. Lee was requiring you to sign the withdrawal slip did it not occur to you to leave the bank? Atty. Pangilinan:

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The question has already been answered she said she cannot leave because she is being threatened. Atty. Dizon: That was during the time when she first met Mr. Lee. Court: Witness may answer. A When I was about to sign the withdrawal slip I inquired from him If I signed it I can leave already but he insisted that I should not leave, Sir. Q When he told you that did it not occur to you to stand up and go out of the bank? A No, Sir. Q Why? A He was insisting that I return the amount I have withdrawn especially on June 18 when I withdrew P18,000.00, Sir. COURT: The question is why did you not leave and disregarded him? A Because I cannot just leave him that way, Your Honor. Atty. Dizon: Why? What was the reason that you cannot leave him? A Because he is insisting that the responsibility of one person be my responsibility and at that time I was feeling nervous and he did not tell me to stand up and leave, Sir. (ibid, pp. 18-20, Records, pp. 109-111) In her insistence to clear up her name, it is not farfetched for Us to think that the complainant voluntarily but grudgingly returned the money to show good faith. Thus, it was she who informed the petitioner about the existence of the RCBC Time Deposit Certificate (Exh. "A", pp. 4-5, Records). The allegation that she did so because of petitioner's threats came from the complainant herself. She has not been able to present any other witness to buttress her claim. Further, We find that contrary to complainant's allegations in her affidavit (ibid, p. 5) it was not the petitioner who suggested the encashment of the RCBC Time Deposit Certificate but her sister; and that again, it was not the petitioner who agreed to the sister's suggestion but Cruz, the PRO Manager, Foreign Department of the bank (TSN, January 8, 1985, pp. 40-41, Records, pp. 131-132).

Moreover, while complainant claimed that her freedom of movement was restrained, she, however, was able to move about freely unguarded from the office of the petitioner situated at the ground floor to the office of Cruz at the mezzanine floor where her sister found her (ibid, pp. 39- 40, Records, pp. 130-131). Undoubtedly, during that time, there were many bank clients who transacted business with the bank (TSN, November 20, 1984, p. 21; Records, p. 112). The bank security guards then were at their posts. Complainant herself admitted that they manifested no overt acts to prevent her from leaving despite the alleged loud threats of the petitioner (ibid, pp. 20- 21, Records, pp. 111-112) which could be heard considering that the door to petitioner's office was kept open (TSN, October 8, 1985, p. 184, Records, p. 276). Given such atmosphere, the complainant still did not leave the bank. The respondent court cited the prepared typewritten withdrawal slip and the non-presentation of the complainant's passbook as indicators of her involuntary acts. We disagree. The petitioner testified that the general rule was that the bank requires the presentation of the passbook whenever withdrawals are made. However, there was an exception to this rule, i.e. when the depositor is a regular customer in depositing or withdrawing money in the bank (TSN, October 8, 1985, pp. 189-190, Records, pp. 281-282). The prosecution failed to submit evidence to rebut his contentions. Besides, the trial court's conclusion that the withdrawal slip was typewritten was without basis considering that the complainant merely averred that the withdrawal slip was already prepared when she signed it (Exh. "A", Records, p. 4). We also take exception to the following ruling of the appellate court: It must be noted that the position of a bank manager is one of prestige and dignity and when the said bank was cheated or swindled it certainly reflects on the capability and efficiency of the manager and one can just imagine the kind of mental attitude and feeling of anger the latter would have towards the alleged swindler. Shouting, raising of voice and dagger looks are common characteristics of an angry man and that was what accused Lee exhibited to a fragile weaker sex and pregnant offended party. It would be natural to get angry with someone who had victimized you. Naturalness, however is not always righteous. It is like taking the law into your hands and that was what the accused Lee did. (CA Decision, pp. 11-12, Rollo, pp. 5253) This pronouncement creates an impression that the petitioner had made a personal case out of the situation. However, the evidence does not support this view. We find that at the time the check was deposited and encashed, the petitioner was then on leave (TSN, June 11, 1985, p. 156; Records, p. 248). Under this circumstance, it is not fair to consider the bank's mistake in accepting and paying the check as the petitioner's mistake which could militate against his efficiency. The petitioner attributed the mistake in the payment of the forged check to the usual risks in banking business. He stated:

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Atty. Pangilinan, Private prosecutor (authorized by the Fiscal to prosecute the case in the latter's stead) Q So you no longer consider him (Carpio) as entitled in (sic) the proceeds of the chek (sic) and therefore at that point of (sic) time you will now concede that the payment made by you to him was a big mistake? A When we were asking for the respondent and we were locating Honorio Carpio and we cannot locate him, I consider that a mistake, Sir. Q It was a big mistake as a matter of fact? A When it comes to the falling of the business considering the big amount I would say big mistake but only a mistake, it was a usual risk in banking business, Sir. Q But of course Mr. Lee, being a mistake that mistake will harm and tense your personality as a Bank Manager? A It is up to our Manager to decide but when it comes to other transactions I am handling Three Million plus and considering that check I don't think with all modesty it will affect me, Sir. Q But you are called upon to try to recover any money which was in your judgment was unlawfully taken from you by anybody A When it comes to procedure I don't think it was unlawfully taken, as a matter of fact it was our bank who credited this account, Sir. Q So it is your bounded (sic) duty to recover money which was paid to someonelse (sic) which payment is not due to him, am I correct? A It is the duty of our lawyer to recover it, Sir. Q Is it not a fact that your lawyer is only your agent? Atty. Dizon: I think we are going too far, it has nothing to do with the particular incident subject matter of the criminal offense. Court: I see the point of the defense but the witness is very intelligent, I can see the point of counsel, because in order not to effect his integrity he resorted to this, for example in case of a bank employee who stole P500.00 and the other one is P200.00, it could have the same mistake which is supposed to be admonished by removal. You answer.

A Yes that is the same case whether it is small or big but when it comes to the Manager the Head Office is very understanding when it comes to bogus checks and of course my work is a supervisory. Sir. (ibid, pp. 170-171; Records, pp. 263-264) The most telling proof of the absence of intimidation was the fact that the complainant refused to sign the promissory note in spite of the alleged threats of the petitioner (TSN, January 8, 1985, p. 48; Records, p. 139). American authorities have declared that "(t)he force which is claimed to have compelled criminal conduct against the will of the actor must be immediate and continuous and threaten grave danger to his person during all of the time the act is being committed. That is, it must be a dangerous force threatened 'in praesenti.' It must be a force threatening great bodily harm that remains constant in controlling the will of the unwilling participant while the act is being performed and from which he cannot then withdraw in safety." (State v. Hood, 165 NE 2d, 28, 31-32, Emphasis ours). The complainant proferred excuses for her action. For one, she claimed that her sister's presence helped her recover her composure (TSN, November 20, 1984, p. 29, Records, p. 120). We are not persuaded. If indeed she had recovered her composure because of her sister's presence, she could have just left the premises in a huff without encashing the RCBC Time Deposit Certificate or if they (complainant and sister) were already at the RCBC, they could have desisted from encashing the check and then could have left for home notwithstanding the alleged presence of Mr. Lumba who was no longer in his own bank but among the RCBC clients or she could have refused to sign the affidavit which was handed to her first before the promissory note. Yet, she did neither of these logical possibilities. Secondly, she averred that she refused to sign the promissory note because she was able to read its contents unlike the affidavit and she realized that she would have a great responsibility to return the amount taken by Carpio (ibid, pp. 27-28, Records, pp. 118-119). Such an excuse is flimsy and weak. It is strange that complainant's sister, who was with her, failed to corroborate her statement that she was denied the opportunity to read the affidavit. Her bare assertion simply confirms the voluntariness of her actions. All her disputed acts were geared towards proving her good faith. Complainant was willing to return the sum of P48,000.00 she took since it was only up to this amount where her involvement lies. However, as soon as she realized that she would have the enormous task of reimbursing the bank the balance of the proceeds of the forged check allegedly taken by Carpio, she refused to cooperate any further. Notwithstanding the alleged threats of petitioner, she did not budge. Thus, We find it as a logical consequence that she merely asked for the receipt of the P18,000.00 she deposited rather than the cancellation of her earlier withdrawal. On this point, complainant claimed that after her refusal to sign the document, she no longer insisted on the return of the money because she felt that it was the only way she could leave the bank premises (TSN, November 20, 1984, p. 31, Records, p. 120). This pretense, however, was belied by her subsequent actuations. We find that she and her sister left the

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bank unescorted to eat their snack; that they were required by the petitioner to come back; and that they decided not to eat but instead went home (TSN, November 20, 1984, pp. 31-32, Records, pp. 122-123 and January 8, 1965, pp. 49-50, Records, pp. 140-141). With such behavior, We are at a loss to understand how coercion could attach in this case. Obviously, the complainant has not been cowed into submission. Against this backdrop, We hold that coercion did not exist in this case. Consequently, the petitioner should be acquitted. ACCORDINGLY, the decision appealed from is hereby REVERSED and a new one hereby entered ACQUITTING the accused of the crime of grave coercion. SO ORDERED.

place, carrying bolos and crowbars, and started to construct a barbed wire fence in front of the chapel. Alfonso Castillo, who was chairman of the committee in charge of the pabasa, tried to persuade them to refrain from carrying out their plan, by reminding them of the fact that it was Holy Week and that it was highly improper to construct a fence at that time of the evening. A verbal altercation ensued. When the people attending the pabasa in the chapel and those who were eating in the yard thereof noticed what was happening, they became excited and left the place hurriedly and in such confusion that dishes and saucers were broken and benches toppled over. The pabasa was discontinued and it was not resumed until after an investigation conducted by the chief of police on the following morning, which investigation led to the filing of the complaint appearing on pages 1 and 2 of the record. Many years ago the Clemente family by informal donation gave the land on which the old chapel was erected. When it was destroyed, the present chapel was erected, and there is now a dispute as to whether the new chapel is not now impinging on the land that belongs to the Clemente family. The appellants are partisans of he Clemente family. It is to be noted that article 133 of the Revises Penal Code punishes acts "notoriously offensive to the feelings of the faithful." The construction of a fence, even though irritating and vexatious under the circumstances to those present, is not such an act as can be designated as "notoriously offensive to the faithful", as normally such an act would be a matter of complete indifference to those not present, no matter how religious a turn of mind they might be. The disturbance or interruption of any ceremony of a religious character under the old Penal Code was denounced by article 571 and was punished by arrest from one to ten days and a fine of from 15 to 125 pesetas. But this article was omitted from the Revised Penal Code and the offense, if any was committed by the appellants, is denounced in article 287 as an "unjust vexation" and punished by arresto menor or a fine ranging from 5 to 200 pesos or both. It is urged upon us that the act of building a fence was innocent and was simply to protect private property rights. The fact that this argument is a pretense only is clearly shown by the circumstances under which the fence was constructed, namely, late at night and in such a way as to vex and annoy the parties who had gathered to celebrate the pabasa and is further shown by the fact that many of the appellants saw fit to introduce as their defense a false alibi. Appellants are therefore acquitted of a violation of article 133 of the Revised Penal Code but found guilty of a violation of article 287 of the Revised Penal Code and are sentenced each to a fine of P75 with subsidiary confinement in case of insolvency, together with the costs in both instances. So ordered. Avancea, C.J., Abad Santos, Vickers, and Diaz, JJ., concur.

UNJUST VEXATION
G.R. No. L-40577 August 23, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PROCOPIO REYES, POLICARPIO NACANA, FLORENTINO CLEMENTE, HERMOGENES MALLARI, MARCELINO MALLARI, CASTOR ALIPIO, and RUFINO MATIAS, defendants-appellants. HULL, J.: Appellants were convicted in the Court of First Instance of Tarlac of a violation of article 133 of the Revised Penal Code, which reads: ART. 133. Offending the religious feelings.The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon anyone who, in a place devoted to religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful. In the barrio of Macalong, municipality of La Paz, Province of Tarlac, there is a chapel where it is customary to hold what is known in local parlance as a pabasa. As stated by the lower court, "the term pabasa is applied to the act of the people, professing the Roman Catholic faith," of assembling, during Lent, "at a certain designated place, for the purpose of reading and the life, passion and death of Jesus Christ. A book known as the 'Vida, Pasion y Muerte de Jesucristo', which contains a fun account in verse of the life, passion and death of Jesus Christ, is used in this celebration." The pabasa in Macalong used to begin on Palm Sunday and continue day and night, without any interruption whatsoever, until Good Friday. As usual, refreshment and food were served in the yard adjoining the chapel, and the expenses incidental thereto were defrayed by different persons. While the pabasa was going on the evening of April 10, 1933, between 11 and 12 o'clock, the defendants Procopio Reyes, Policarpio Nacana, Florentino Clemente, Hermogenes Mallari, Marcelino Mallari, Castor Alipio, and Rufino Matias arrived at the

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