G.R. No. 95322 March 1, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO DOMASIAN AND DR.

SAMSON TAN, accused-appellant. The Solicitor General for plaintiff-appellee. Silvestre L. Tagarao for appellant Pablito Domasian. Lino M. Patajo for appellant Dr. Samson Tan. CRUZ, J.: The boy was detained for only about three hours and was released even before his parents received the ransom note. But it spawned a protracted trial spanning all of 8 years and led to the conviction of the two accused. 1 The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in question. The accused were Pablito Domasian and Samson Tan, the latter then a resident physician in the hospital owned by Enrico's parents. They were represented by separate lawyers at the trial and filed separate briefs in this appeal. The evidence of the prosecution showed that in the morning of March 11, 1982, while Enrico was walking with a classmate along Roque street in the poblacion of Lopez, Quezon, he was approached by a man who requested his assistance in getting his father's signature on a medical certificate. Enrico agreed to help and rode with the man in a tricycle to Calantipayan, where he waited outside while the man went into a building to get the certificate. Enrico became apprehensive and started to cry when, instead of taking him to the hospital, the man flagged a minibus and forced him inside, holding him firmly all the while. The man told him to stop crying or he would not be returned to his father. When they alighted at Gumaca, they took another tricycle, this time bound for the municipal building from where they walked to the market. Here the man talked to a jeepney driver and handed him an envelope addressed to Dr. Enrique Agra, the boy's father. The two then boarded a tricycle headed for San Vicente, with the man still firmly holding Enrico, who continued crying. This aroused the suspicion of the driver, Alexander Grate, who asked the man about his relationship with the boy. The man said he and the boy were brothers, making Grate doubly suspicious because of the physical differences between the two and the wide gap between their ages.

Grate immediately reported the matter to two barangay tanods when his passengers alighted from the tricycle. Grate and the tanods went after the two and saw the man dragging the boy. Noticing that they were being pursued, the man told Enrico to run fast as their pursuers might behead them. Somehow, the man managed to escape, leaving Enrico behind. Enrico was on his way home in a passenger jeep when he met his parents, who were riding in the hospital ambulance and already looking for him. 2 At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received an envelope containing a ransom note. The note demanded P1 million for the release of Enrico and warned that otherwise the boy would be killed. Agra thought the handwriting in the note was familiar. After comparing it with some records in the hospital, he gave the note to the police, which referred it to the NBI for examination. 3 The test showed that it bad been written by Dr. Samson Tan. 4 On the other hand, Enrico was shown a folder of pictures in the police station so be could identify the man who had detained him, and he pointed to the picture of Pablito Domasian. 5 Domasian and Tan were subsequently charged with the crime of kidnapping with serious illegal detention in the Regional Trial Court of Quezon. 6 The defense of both accused was denial and alibi. Domasian claimed that at the time of the incident he was watching a mahjong game in a friend's house and later went to an optical clinic with his wife for the refraction of his eyeglasses. 7 Dr. Tan for his part said he was in Manila. 8 After trial Judge Enrico A. Lanzanas found both accused guilty as charged and sentenced them to suffer the penalty of reclusion perpetua and all accessory penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique Agra as actual and moral damages and attorney's fees. In the present appeal, the accused-appellants reiterate their denial of any participation in the incident in question. They belittle the credibility of the prosecution witnesses and submit that their own witnesses are more believable. Tan specifically challenges the findings of the NBI and offers anew the opposite findings of the PC/INP showing that he was not the writer of the ransom note. He maintains that in any case, the crime alleged is not kidnapping with serious illegal detention as no detention in an enclosure was involved. If at all, it should be denominated and punished only as grave coercion. Finally, both Domasian and Tan insist that there is no basis for the finding of a conspiracy between them to make them criminally liable in equal degree.

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First, on the credibility of the witnesses. This is assessed in the first instance by the trial judge, whose finding in this regard is received with much respect by the appellate court because of his opportunity to directly observe the demeanor of the witnesses on the stand. In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim himself, who positively identified Domasian as the person who detained him for three hours. The trial court observed that the boy was "straight-forward, natural and consistent" in the narration of his detention. The boy's naivete made him even more believable. Tirso Ferreras, Enrico's classmate and also his age, pointed to Domasian with equal certainty, as the man who approached Enrico when they were walking together that morning of March 11, 1982. Grate, the tricycle driver who suspected Enrico's companion and later chased him, was also positive in identifying Domasian. All these three witnesses did not know Domasian until that same morning and could have no ill motive in testifying against him. By contrast, Eugenia Agtay, who testified for the defense, can hardly be considered a disinterested witness because she admitted she had known Domasian for 3 years. The defense asks why Domasian openly took Enrico to several public places if the intention was to kidnap and detain him. That is for Domasian himself to answer. We do no have to probe the reasons for the irrational conduct of an accused. The more important question, as we see it, is why Domasian detained Enrico in the first place after pretending he needed the boy's help. That is also for Domasian to explain. As for Enrico's alleged willingness to go with Domasian, this was manifested only at the beginning, when he believed the man sincerely needed his assistance. But he was soon disabused. His initial confidence gave way to fear when Domasian, after taking him so far away from the hospital where he was going, restrained and threatened him if he did not stop crying. Domasian's alibi cannot stand against his positive identification by Enrico, Grate and Ferreras, let alone the contradictions made by his corroborating witness, Dr. Irene Argosino, regarding the time he was in the optical clinic and the manner of his payment for the refraction. 9 Tan's alibi is not convincing either. The circumstance that he may have been in Manila at the time of the incident does not prove that he could not have written the ransom note except at that time. Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:

The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person and has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged and has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court with writings admitted or treated as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction of the judge. Two expert witnesses were presented in the case at bar, one from the NBI, 10 who opined that the ransom note and the standard documents were written by one and the same person, and another from the PC/INP 11 who expressed a contrary conclusion. The trial court chose to believe the NBI expert because his examination and analysis "was more comprehensive than the one conducted by the PC/INP handwriting expert, who virtually limited his reliance on the perceived similarities and dissimilarities in the pattern and style of the writing, thereby disregarding the basic principle in handwriting identification that it is not the form alone nor anyone feature but rather a combination of all the qualities that identify." We have held that the value of the opinion of a handwriting expert depends not upon his mere statements of whether a writing is genuine or false, but upon the assistance he may afford in pointing out distinguishing marks, characteristics and discrepancies in and between genuine and false specimens of writing which would ordinarily escape notice or detection from an unpracticed observer. 12 The test of genuineness ought to be the resemblance, not the formation of letters in some other specimens but to the general character of writing, which is impressed on it as the involuntary and unconscious result of constitution, habit or other permanent course, and is, therefore itself permanent. 13 Presented with the conflicting opinions of the witnesses in the case at bar, the Court feels that the scales should tilt in favor of the prosecution. Significantly, the NBI opinion was bolstered by the testimony of Agra, who believed that the ransom note was written by Tan, with whose handwriting he was familiar because they had been working in the hospital for four years and he had seen that handwriting every day in Tan's prescriptions and daily reports. 14

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Cesar v. Sandiganbayan 15 is not applicable because that case involved a forgery or the deliberate imitation of another person's signature. In the case before us, there was in fact an effort to disguise the ransom note writer's penmanship to prevent his discovery. As for the nature of the crime committed, Article 267 of the Revised Penal Code provides as follows: Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than five days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; of if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person; even if none of the circumstances above-mentioned were present in the commission of the offense. Contrary to Tan's submission, this crime may consist not only in placing a person in an enclosure but also in detaining him or depriving him in any manner of his liberty. 16 In the case at bar, it is noted that although the victim was not confined in an enclosure, he was deprived of his liberty when Domasian restrained him from going home and dragged him first into the minibus that took them to the municipal building in Gumaca, thence to the market and then into the tricycle bound for San Vicente. The detention was committed by Domasian, who was a private individual, and Enrico was a minor at that time. The crime clearly comes under Par. 4 of the above-quoted article.

Tan claims that the lower court erred in not finding that the sending of the ransom note was an impossible crime which he says is not punishable. His reason is that the second paragraph of Article 4 of the Revised Penal Code provides that criminal liability shall be incurred "by any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means." As the crime alleged is not against persons or property but against liberty, he argues that it is not covered by the said provision. Tan conveniently forgets the first paragraphs of the same article, which clearly applies to him, thus: Art. 4. Criminal liability. Criminal liability shall be incurred: 1. By any person committing a felony (delito) although the wrongful act done be different from that which he intended. xxx xxx xxx Even before the ransom note was received, the crime of kidnapping with serious illegal detention had already been committed. The act cannot be considered an impossible crime because there was no inherent improbability of its accomplishment or the employment of inadequate or ineffective means. The delivery of the ransom note after the rescue of the victim did not extinguish the offense, which had already been consummated when Domasian deprived Enrico of his liberty. The sending of the ransom note would have had the effect only of increasing the penalty to death under the last paragraph of Article 267 although this too would not have been possible under the new Constitution. On the issue of conspiracy, we note first that it exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it, whether they act through physical volition of one or all, proceeding severally or collectively. 17 It is settled that conspiracy can be inferred from and proven by the acts of the accused themselves when said acts point to a joint purpose and design, concerted action and community of interests. 18 In the instant case, the trial court correctly held that conspiracy was proved by the act of Domasian in detaining Enrico; the writing of the ransom note by Tan; and its delivery by Domasian to Agra. These acts were complementary to each other and

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geared toward the attainment of the common ultimate objective, viz., to extort the ransom of P1 million in exchange for Enrico's life. The motive for the offense is not difficult to discover. According to Agra, Tan approached him six days before the incident happened and requested a loan of at least P15,000.00. Agra said he had no funds at that moment and Tan did not believe him, angrily saying that Agra could even raise a million pesos if he really wanted to help. 19 The refusal obviously triggered the plan to kidnap Enrico and demand P1 million for his release. The constitutional issues raised by Domasian do not affect the decision in this case. His claim that he was arrested without warrant and then tortured and held incommunicado to extort a confession from him does not vitiate his conviction. He never gave any confession. As for the allegation that the seizure of the documents used for comparison with the ransom note was made without a search warrant, it suffices to say that such documents were taken by Agra himself and not by the NBI agents or other police authorities. We held in the case of People vs. Andre Marti, 20 that the Bill of Rights cannot be invoked against acts of private individuals, being directed only against the government and its law-enforcement agencies and limitation on official action. We are satisfied that Tan and Domasian, in conspiracy with each other, committed the crime of kidnapping as defined and penalized under Article 267 of the Revised Penal Code and so deserve the penalty imposed upon them by the trial court. WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-appellants. Let a copy of this decision be sent to the Commission on Human Rights for investigation of the alleged violation of the constitutional rights of Pablito Domasian. SO ORDERED. Grio-Aquino, Bellosillo and Quiason, JJ., concur.

G.R. No. L-18760

September 29, 1966

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. KAMAD AKIRAN, ET AL., defendants. KAMAD AKIRAN, JARANG ASKALI, ALAMMARA DUMPAS and KASTIRI SAPPARI, defendants-appellants. Manuel L. La Madrid for defendants and appellants. Office of the Solicitor General for plaintiff and appellee.

BENGZON, J.P., J.: As amended information for kidnapping with ransom was filed on December 22, 1960 by the Provincial Fiscal in the Court of First Instance of Sulu against Kamad Akiran, Jarang Askali, Jamiri Hawadji, Alammara Dumpas and Kastiri Sappari. It alleged that on July 26, 1960, in the municipality of Maimbung, Province of Sulu, the abovementioned five accused together with five other persons still at large, namely, Ahaddin Panning, Isirani Askali, Abdusali Jadji, Jammang Dahim and Ammang Akiran, armed with firearms, in pursuance of a conspiracy, kidnapped Isirani Sakili and brought him to a house in Bud Katinganan, of the same municipality, where he was detained for nine hours and released only when the said accused persons succeeded in extorting a ransom of P1,000, in violation of Article 267, last paragraph, of the Revised Penal Code, as amended. At the instance of the Provincial Fiscal, for lack of evidence, the charge was dismissed as to Jamiri Hawadji. The remaining four accused pleaded not guilty. The prosecution presented the alleged kidnap victim himself, Isirani Sakili, 45 years old, married, a merchant, who testified that on July 26, 1960 his brother Hadji Hassan, his driver, Bairulla, and he were on the way to Jolo after having loaded his truck with copra in Tambaking, Maimbung District. At Kilometer 16 of the Indanan-Lapa road, they were stopped by a group of men armed with carbines and garands, who, led by the accused Jarang Askali, ran to the middle of the road and pointed their weapons at them. As they stopped, Jarang Askali shouted for him to come down from the truck. When Isirani Sakili and his brother stepped off the truck, Jarang ordered Hadji Hassan to go home and produce P1,600 that very day or else Isirani Sakili

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would be killed (I tsn., 39-30). Hadji Hassan boarded the truck and left. Isirani Sakili was then brought to an abaca plantation in Bud Katinganan where he stayed from 9 A.M. to 1 P.M. of the same day, guarded by Jarang and Ahaddin, as the rest had gone home (I tsn., 46). When Jamiri Hawadji came, Isirani Sakili was brought to the former's house upon Jamiri's own suggestion. At about 6 P.M. that day he was released, after his brother Hadji Hassan and father-in-law, Saddawani Sadda, came and gave to Jarang Askali P1,000, promising that the remaining P600 will be given the next day (I tsn., 38). Isirani Sakili identified among his kidnappers the four accused: Jarang Askali, Ahaddin Panning, Kastiri Sappari, Isirani Askali, Abdusali Jadji, Alammara Dumpas, Jammang Dahim, Kamad Akiran and Ammang Akiran (I tsn., 32), claiming that he knew them because they were neighbors and grew up together (I tsn., 44). Hadji Hassan, corroborating his brother's testimony, also identified the four accused as among Isirani Sakili's kidnappers (II tsn., 1-3). He added that after he left, he told Isirani's wife, Nunung what happened. She was able to give him only P1,000. The remaining P600 he tried to raise from neighbors and friends, but failed. He then proceeded to the private market of Imam Juaini where he met Isirani Sakili's father-in-law, Saddawani Sadda, who told him he already found Isirani through Jamiri Hawadji, through whom also Jarang Askali sent word about the P1,600 ransom (II tsn., 1-5). Because they could not get P600 more, they proceeded to the house of Jamiri Hawadji and found there Isirani Sakili, Jarang Askali, Ahaddin Panning and Jamiri Hawadji. After he personally handed the money to Jarang Askali, Isirani Sakili was released at about 6 P.M., with the promise of Hadji Hassan to bring the P600 the next morning. Hadji Hassan went home while Isirani Sakili went to Jolo (11 tsn., 5-7). Saddawani Sadda another prosecution witness testified that he had requested Jamiri Hawadji, a close relative of Jarang Askali, through Unsul and Beilaji, to intercede for Isirani Sakili (II tsn., 24). After they gave the money to Jarang Askali, Hadji Hassan went home while Isirani Sakili went to report the matter to the Philippine Constabulary. Then, together, they proceeded to Jolo (II tsn., 29). In defense, it was testified to by Panglima Tagayan, that earlier, on June 5, 1960, his son-in-law Hayani Askali, Jarang Askali's brother, was shot by Tingkahan and Sakkan, brothers or cousins-in-law of Isirani Sakili. Hayani Askali, although wounded, lived (II tsn., 45). Five days after he was shot, Hayani went with a brother of his and Panglima Tagayan to the Provincial Fiscal to lodge a complaint. Subsequently, Isirani Sakili offered to pay Hayani P1,600, provided the latter would not proceed with the complaint.

Salama Sahawi, sister-in-law of Jamiri Hawadji and mother-in-law of Alammara Dumpas, stated that while drinking soft drink in the store of Imam Juaini, she saw a cargo truck pass by, on which were Isirani Sakili, his wife, Hadji Hassan and others she could not remember (I tsn., 71-72). The truck stopped and she saw and heard Jarang ask in a loud voice "Why did you not comply with your promise, you did not comply with it?" (I tsn., 72). Then she saw Isirani Sakili and Jarang Askali with his companions head for Bud Katinganan with Isirani leading the way. Meanwhile Isirani Sakili's companions went towards Jolo. Layha Bismark claimed that in the afternoon of July 26, 1960, he overheard a group, among them Kamad Akiran, Jammang Dahim, Hadji Hassan and Saddawani Sadda talking (11 tsn., 49-51). He found out that Hadji Hassan and Saddawani Sadda were going to Jamiri Hawadji's house, where Isirani was kept, to give P1,000 to Jarang Askali to defray the hospital expenses of Hayani. Accused Jarang Askali, 37, married, and a resident of Kabbun, Jali, Indanan, Sulu, testified that Isirani Sakili had arranged with his uncle Panglima Tagayan to pay the expenses of Hayani (II tsn., 56). On the day of the alleged kidnapping he and some companions were on the way to a certain celebration when they saw Isirani Sakili on his truck with Hadji Hassan and their wives. They waved for him to stop and when he did, they conferred regarding the payment of his brother's expenses. Then he and his companions, Jammang Dahim, Abdusali Jadji, Ahaddin Panning, with Isirani Sakili leading, went to Jamiri Hawadji's place where Isirani Sakili proposed to make payment (II tsn., 57-63). Before they reached Jamiri's house, they were joined by Hadji Hassan and Saddawani Sadda. Since Jamiri, before whom payment was to be made as he was a sort of a leader in the place was not there, Jarang Askali was made to swear before a grave that he would not file a complaint. After he swore, he was given P1,000 and some jewelries to guarantee payment of the remaining P600, which guaranty he did not accept as he already considered Isirani Sakili a blood brother whose word could be trusted. As to Alammara Dumpas, Jarang testified he was also with Isirani Sakili in the hauling truck, Jammang Dahim, he further testified, is already dead (II tsn., 61). Jarang added that he was surprised when the complaint was filed against him and so went into hiding and came home only after nine days (II tsn., 72), and surrendered himself and also the gun he bought with part of the money he got.

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Taking to the witness box, Kamad Akiran, 22, single, herder and resident of Indanan, Sulu, denied all of Isirani Sakili's charges, denied having known him at all and claimed that at the time of the alleged kidnapping, he was husking coconuts (I tsn., 17-18), and knew of the incident only from rumors that went around. And he added that it was Isirani Sakili's wife who caused his arrest while he was selling copra in town (I tsn., 21). After trial, judgment was rendered on June 29, 1961, finding the four accused guilty, and charged beyond reasonable doubt and in view of Republic Act 1084 raising the penalty of kidnapping for ransom to a single penalty of death, sentenced them to death and ordered them jointly and severally pay Isirani Sakili P1,000 and to pay the costs. Automatically, therefore, the case is before Us for review. The resolution of the issues herein hinges on the credibility of the witnesses for the prosecution and the defense. In such a case the rule followed is that appellate Court will not disturb the findings of the trial court, as the latter is in a better position to decide the question of credibility, having seen and heard the witnesses themselves and observed behavior and the manner of their testimony during the trial. The exception to this rule is when it is shown that the trial court has overlooked certain facts of substance and value that, if considered, might affect the case. 1 Jarang Askali claimed that they were on their way to a celebration when he saw Isirani's truck, waved for it to stop, conferred with Isirani and then, with Isirani, proceeded to Jamiri's place where the payment was to be made. This meeting was unarranged. It is not likely for the alleged transaction to have been carried out without preparations on both sides. Furthermore, the money which was supposed to be for the hospital expenses of Hayani was never given to Hayani. And instead Jarang admitted having bought a gun with part of the money he received. Isirani Sakili, who denied the assertions of the defense, and Hadji Hassan, positively identified the four accused as the authors of the crime. As against the allegations of the defense which were not sufficiently and convincingly presented, the trial court's finding in favor of the prosecution should be upheld. As aforestated, said court is better situated to determine the credibility of the witnesses. It is however argued in defense, that granting that there was kidnapping, the lower court erred in ruling that there was conspiracy to extort ransom. It is urged that only Jarang Askali was active while the rest remained

passive and silent. Furthermore, at the time the money was given to Jarang, of the other alleged kidnappers, only Jammang Dahim was present. We cannot agree. The trial court found that, heavily armed, they all waited for Isirani's truck and stopped it when it came. The others fully concurred in Jarang's criminal resolution when he demanded P1,600 for Isirani's release and affirmed their assent when they escorted Isirani to the abaca plantation where he was confined. Even if they went home afterwards or did not get any part of the money, the fact is that they fully and directly cooperated and did their part so that Jarang's resolution would be carried out. It is further maintained that the accused should not be convicted of kidnapping with ransom because the intention was at most merely to compel Isirani to fulfill his promise of defraying Hayani's hospital expenses. If this were the purpose, the accused did not have to kidnap Isirani. The latter wanted, if the allegations of the defense are true, to prevent the filing of the complaint, to the extent of paying P1,600. All there was to do to compel was to threaten to continue the complaint and that would have alarmed Isirani into submission. No kidnapping would have been necessary. We state in passing that even if the purpose alleged by the defense be accepted that is, to compel the alleged payment under Article 267 of the Revised Penal Code, as amended by R.A. 1084 effective June 15, 1954, the offense is still kidnapping for ransom. Said amended last paragraph, which increased the penalty for kidnapping and serious illegal detention, provides: The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense. This provision was 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." 2 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.1awphl.nt

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With regard to Alammara Dumpas, We cannot believe that Isirani Sakili would accuse him of a capital offense if he was really Isirani's companion in the truck. The truth must be that he was among the kidnappers who stopped the truck, as pointed out by those admittedly aboard said truck, namely, Isirani and Hadji. Neither do We find credible the alibi of Kamad Akiran that he was husking coconuts it is not stated where at the time of the alleged kidnapping. No other witness was presented in his behalf. Alibi is so easily and conveniently manufactured. And to be sustained it must be shown which has not been done herein to preclude the physical presence of the accused at the place of the crime at the time of commission. As ruled by this Court, alibi dwindles into nothingness in the face of positive identification, as in this case, of the accused as participants of the crime. 3 Appellants' brief states that Kastiri Sappari was not present in the scene of the crime, citing Jarang Askali's testimony (II tsn., 61) that Kastiri was not with him when he stopped the truck, and the testimony of another defense witness, Salama Sahawi (I tsn., 76), who merely said she could not identify who were the other companions of Jarang, but did not state that Sappari was not there. Such evidence so dependent upon credibility cannot prevail over Sappari's positive identification by Isirani and Hadji. WHEREFORE, the appealed judgment of conviction is hereby affirmed, with the sole modification, for lack of the necessary votes to impose the penalty of death, that the four accused are hereby sentenced to reclusion perpetua instead of death. No costs in this instance. So ordered. Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.

CALLEJO, SR., J.: Before us is an appeal from the Decision1 of the Regional Trial Court of Binangonan, Rizal, Branch 69, in Criminal Case No. 1590-B convicting appellant Domingo Sabardan of serious illegal detention with rape, sentencing him to suffer the penalty of reclusion perpetua, and ordering the appellant to indemnify the private complainant, Richelle Banluta, the sum of P50,000.00. The Information2 against the appellant reads: That about and during the period beginning the 15th day of September 1991, to the 30th day of September 1991, in the Municipality of Binangonan, Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and by force and intimidation, detain and keep lock one Richelle Banluta, a girl twelve (12) years of age in his rented apartment at No. 5 Linaluz St., SCHSubdivision-Tayuman, Binangonan, Rizal, from September 15 to September 30, 1991, or a period of fifteen (15) days, under restraint and against the will of said Richelle Banluta, and said accused during said period of detention did then and there willfully, unlawfully and feloniously have a carnal knowledge of the complainant Richelle Banluta while she is deprived of reason or otherwise unconscious by reason of a drug which he administered to her, against her will and consent. Contrary to law. When arraigned on June 9, 1992, the appellant pleaded not guilty. Trial thereafter ensued. The Case for the Prosecution Richelle Banluta was born on August 10, 1979. When she was about four (4) years old, Nimfa Banluta, a beach resort owner, allowed Richelle to stay in their house and considered her as a natural daughter. Nimfa had Richelle enrolled in the elementary school using her surname, "Banluta." Sometime in 1990, the Banluta family transferred their residence to No. 5, Linaluz Street, San Carlos Subdivision, Tayuman, Binangonan, Rizal. Opposite their house was that of Elizabeth de Luna. Another neighbor of the

G.R. No. 132135

May 21, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. DOMINGO SABARDAN, appellant. DECISION

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Banluta family was the appellant, then fifty-year-old Domingo Sabardan, a cathecist who resided in a two-storey apartment about fifteen meters away from the Banluta residence. The appellant came to meet Richelle as he frequented the Banluta house and befriended Rico Banluta, Nimfas twentyone-year-old son. At about 10:00 p.m. on September 15, 1991, Nimfa berated Richelle for playing with the diaper of her niece. Richelle, who was then a little more than twelve years old, placed some underwear, shorts, long pants, and four shirts in her school bag and surreptitiously left the house. She passed by the appellants apartment while the latter was on his way out to throw garbage. The appellant inquired where she was going, and Richelle replied that she was earlier berated by her mother and was leaving the house. The appellant invited Richelle to his apartment, and to spend the night therein. Richelle agreed. She felt happy, thinking that she was in good hands. 3 Besides, she had nowhere to go.4 The appellant led Richelle to a room on the second floor of the apartment, where she slept without removing her pants and underwear. The following morning, the appellant served breakfast to Richelle in her room. He told Richelle that Ella, who stayed in the house, had left earlier at 5:00 a.m. The room where Richelle slept had three padlocked windows with jalousies. 5 Later that day, the appellant served lunch and dinner to Richelle in her room. That night, the appellant entered the room completely naked. Surprised, Richelle asked what he was doing in the room, but the appellant did not respond. Richelle kicked him and pulled his hair, and told him to get out. The appellant left the room. The next morning, Richelle told the appellant that she wanted to go home already. The appellant dissuaded her from leaving and told Richelle that her mother might get angry if she found out that she had slept in his apartment. The appellant later left the house. When Richelle tried to open the door, she found out that it was locked from the outside.6 In the evening of the fourth day of her detention, or on September 18, 1991, Richelle was seated on a coach in the sala on the ground floor of the apartment.7 The appellant forced her to drink a glass of ice cold beer. When she refused, the appellant threatened to kill her. Afraid for her life, she drank the beer from a glass. The appellant then embraced her, kissed her and touched her breasts. Richelle resisted. Momentarily, she felt dizzy and fell unconscious.

Early the next morning, Richelle woke up and found herself lying in bed completely naked. She felt severe pains in her vagina. She saw the appellant beside her, also completely naked.8 She noticed that her vagina was bleeding profusely. She asked Sabardan what he did to her and he told her nothing.9 Richelle washed her vagina with water.10 In the evening of the fifth day of her detention, or on September 19, 1991, while Richelle was sitting on the sofa on the ground floor, the appellant again forced her to drink beer. She resisted but the appellant threatened to kill her anew. She drank the beer, but consumed only about one-half of the contents of the glass. She felt dizzy and lost consciousness. When she woke up in the morning, she again felt severe pains in her vagina and saw blood in it. 11 The appellant forced Richelle to drink either beer or juice on four other occasions. Richelle felt dizzy afterwards, and would wake up completely naked, feeling pains in her vagina. On September 30, 1991, the appellant left the house, but closed the door outside with three padlocks. At about 5:00 a.m. on that same day, Elizabeth de Luna, a housewife who lived about thirty meters away from the appellant, heard someone hysterically shouting, "Mang Domeng!"12 Elizabeth sensed that the voice was that of Richelles. She looked out of the window of her house and saw the appellant in the upper floor of his apartment, walking to and fro.13 Elizabeth waited for daybreak, and at 6:00 a.m. reported the incident to Val Banluta, Richelles brother. Elizabeth and Val went to the appellants house and knocked on the door. No one responded. The two left and kept the incident to themselves.14 At about 11:00 a.m., Elizabeth sensed that someone in the appellants house was watching television. She related the incident to Richelles other brother, Rico Banluta, who climbed the wall of the appellants house which abutted a vacant lot, and through the window saw Richelle inside the apartment. Rico informed Val of his discovery. They proceeded to the police station where they reported the incident. Three policemen arrived, and along with Rico and Val, they proceeded to the appellants apartment. They saw that it was locked from the outside with three padlocks. Instead of destroying the padlocks, the policemen asked Rico and the latters friends to climb over the wall. Toto and Binoy, who were friends of Rico, climbed the wall, and managed to extricate Richelle from the second floor of the apartment through the window, after removing the jalousies.15 The appellant was not in the house at that time.

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Richelle was, thereafter, brought to the police station for investigation. There, she executed a written sworn statement dated October 2, 1991. She also signed a criminal complaint charging the appellant of serious illegal detention with rape.16 Dr. Jesusa O. Nieves, a medico-legal officer of the PNP Crime Laboratory Service, conducted a physical and medical examination on the private complainant on October 3, 1991. She prepared a Medico-Legal Report, 17 with the following findings: General and Extragenital: Fairly developed, fairly nourished and coherent female subject. Breasts are hemi-spherical with light brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft. Genital: There is lanugo-type growth of pubic hair. Labia majora are full, convex and slightly gaping with the pinkish brown labia minora presenting in between. On separating, the same is disclosed an elastic, fleshly-type hymen with deep, healed laceration at 7 oclock. External vaginal orifice offers moderate resistance to the introduction of examining index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color and consistency. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of recent application of any form of violence. REMARKS:

Vaginal and peri-urethral smears are negative for gramnegative diplococci and for spermatozoa. The Defense of the Appellant The appellant denied having raped Richelle. He testified that he was single, 56 years of age, and was residing at No. 11 Luz Street, San Carlos Heights Subdivision, Tayuman, Binangonan, Rizal. 18 He alleged that he taught catechism in front of the Central School of Angono and the school in Barangay Pag-asa.19 He was a person of good moral character and could not have perpetrated the crime charged. According to the appellant, he never saw Richelle during the period of September 15, 1991 to September 30, 1991, nor did he invite her to stay in his apartment.20 He further asserted that he had nothing to do with the offense charged and that Richelle was merely trying to exact money from him.21 Prosperidad Sabardan Soriano, the appellants sister, testified that she customarily paid a visit to her brothers apartment. During the period of September 15, 1991 up to September 30, 1991, she visited her brother on four different occasions. The first was on September 17, 1991, which was the appellants birthday; the second was on September 25, 1991, the witness natal day. The third was on September 29, 1991; and finally, on September 30, 1991. She never saw Richelle in her brothers apartment. 22 After due trial, the court rendered judgment on October 25, 1997, the decretal portion of which reads: WHEREFORE, the Court finds the accused guilty beyond reasonable doubt of the crime of Serious Illegal Detention with Rape, and therefore sentence (sic) him to suffer the penalty of reclusion perpetua, and to indemnify the private complainant the sum of P50,000.00 and to pay the cost. SO ORDERED.23 The appellant now appeals the decision, contending that: I. THE LOWER COURT ERRED IN CONVICTING THE ACCUSED SINCE THE EVIDENCE PRESENTED DID NOT CONFORM TO THE CRIME CHARGED.

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II. THE LOWER COURT ERRED IN FINDING THAT PRIVATE COMPLAINANT HAD SUFFERED DETENTION OR THAT SHE HAD BEEN RAPED. III. THE PROSECUTIONS EVIDENCE DOES NOT JUSTIFY THE AWARD OF DAMAGES.24 The Courts Ruling Anent the first and second assigned errors, the appellant contends that he was deprived of his right to be informed of the nature and cause of the accusation against him because he was charged of detaining and raping the private complainant in his apartment at No. 5 Linaluz Street, San Carlos Heights Subdivision, Tayuman, Binangonan, Rizal. However, the prosecutions evidence shows that she was detained and raped at No. 11-C Luz Street, San Carlos Heights Subdivision, Tayuman, Binangonan, Rizal. Furthermore, the appellant asserts that under the allegations of the Information, the private complainant was raped when she was "deprived of reason or otherwise unconscious by reason of a drug" which the appellant supposedly administered to her. The prosecution, however, failed to adduce evidence that he administered any drug to the private complainant before she was raped.25 If this were true, Richelle could not have known that she was raped by the appellant since she testified that she felt dizzy and lost consciousness after drinking beer and juice. The appellant asserts that the prosecution failed to prove that Richelle was illegally detained by the appellant in his apartment, and that he forced her to have sexual intercourse with him. The evidence on record, the appellant insists, shows that Richelle agreed to stay with him in his apartment after leaving their house and consented to having sexual intercourse with him. From the time Richelle arrived at his apartment in the evening of September 15, 1991 up to September 30, 1991, she never tried to escape, nor shouted for help, despite the proximity of the appellants apartment to their house and that of Elizabeth de Luna. The contention of the appellant does not persuade. The verisimilitude and probative weight of the testimony of Richelle, that the appellant detained her against her will and raped her in his apartment, were not debilitated by her mistake in declaring that the apartment of the appellant was at No. 5-C Linaluz Street, when, in fact, it was at No. 11-C Luz Street, San Carlos Heights Subdivision, Tayuman, Binangonan, Rizal. It must be stressed that the situs criminis is not an essential element in rape. The

gravamen of the felony is the carnal knowledge by the accused of the private complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended. Richelles mistake was only minor and collateral to the gravamen of the crime charged. She consistently testified that the appellant detained and raped her in his apartment, only about thirty meters away from their house in San Carlos Heights Subdivision, Tayuman, Binangonan, Rizal. The appellant admitted that he resided in the said apartment, and that Richelle and her family were his neighbors. In People vs. Monieva,26 we stressed that where the inconsistency is not an essential element of the crime, such inconsistency is insignificant and cannot have any bearing on the essential fact testified to. It has been held that inconsistencies and discrepancies in the testimony, referring to minor details and not upon the basic aspect of the crime, do not diminish the witnesses credibility. The case for the prosecution was not enfeebled by its failure to adduce in evidence the substance or drug which the appellant forced Richelle to drink and which made her dizzy and unconscious, or its failure to present an expert witness to testify on the presence of any sedative in the beer and juice which Richelle was made to drink. First. The drug or substance in question is only corroborative to Richelles testimony that she became dizzy and unconscious when the appellant forced her to drink beer and juice. There can be no other conclusion than that the appellant mixed a sedative in the beverage which he forced Richelle to drink. It must be stressed that Richelle was then barely twelve years old. The alcoholic content of the beer must have caused her to feel dizzy and lose consciousness. She was rendered to such stupor, weakness of body and mind as to prevent effectual resistance and preclude the possibility of consent. Second. In People vs. Del Rosario,27 we held that a test to determine the presence of any sedative or drug in the drinks given to a victim is not an indispensable element in the prosecution for rape: True, there was no test conducted to determine the presence of any sedative or drug in the drinks given to the victims which caused them to lose momentary control of their faculties. But this is of little consequence as the same is not an indispensable element in the prosecution for rape. Under the circumstances, it suffices that the victim was found to have been unconscious at the time the offender had carnal knowledge of her. 28 Richelle testified that during the fourth and fifth days of her captivity, before she was rescued on September 30, 1991, the appellant forced her to drink

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beer or juice, threatening to kill her if she refused. Despite her resistance, the appellant succeeded in forcing her to drink the beverage. Richelle felt dizzy and unconscious as a consequence, and when she came to, found herself completely naked with the appellant beside her who was also completely nude.29 Richelle testified, thus: Q Question No. 22, Madam Witness, Bukod sa ginawa niyang paghahalik at paghimas niya sa iyong dede na una mong binanggit, mayroon pa ba siyang ginawa sa iyo? Sagot: Noon pong ikatlong araw, meaning on the 17th, sa bahay ni Mang Domeng pagdating niya galing sa pagtuturo ng religion ay pilit niya akong pinainom ng beer at matapos kong mainom ang halos kalahati ng isang boteng beer sa kapipilit niya ay nawalan na ako ng malay at nang magising ako ng madaling araw ay naramdaman ko na masakit ang aking katawan pati na ang aking kike at katabi ko na si Mang Domeng na hubot hubad kung kaya tinanong ko siya kung ano ang nangyari at bakit ko siya katabi at sinabi sa akin na wala at umalis na siya sa aking kwarto, at halos hindi na siya umaalis ng bahay at kung umalis man ay sandali lang at bumabalik agad ito at kung ilang gabi niya akong pilit na pinaiinom ng beer o kaya ay juice at tuwing nakakainom ako ng mga ito ay nawawalan ako ng malay tao at tuwing magigising ako ay katabi ko na si Mang Domeng na palaging hubot hubad at wala ang aking panty. Do you confirm this? A Yes, sir. Q How many times did the accused ask you to drink juice? A Seven (7) times, sir. Q The equal number of times you were asked to drink beer, is it not? A Yes, sir. Sometimes beer, sometimes juice, but I was asked to drink for seven (7) times. COURT: Q So that, it is a fact that you were made to drink beer for seven (7) times?

A Yes, Your Honor. Q How about juice, how many times did he made (sic) you [to] drink juice? A Sometimes he asked me to drink juice and sometimes beer for seven (7) times, Your Honor. Q So that, what you want to tell us on those seven (7) occasions that you were made to drink it was either beer or juice? A Yes, Your Honor. ATTY. MENDOZA: Q Do you recall how many times you were asked to drink beer? A I dont know, sir. I just know juice and beer. Q Do you recall how many times you were asked to drink juice? A No, sir. Q Was there any instance that the accused asked you to drink beer and juice at the same time? A None, sir. Q When you were asked by the accused to drink juice, is it not a fact that you were asked to drink juice while you were in the sofa or downstairs? A Sometimes in the sofa, sometimes in the room, sir. 30 Understandably, Richelle could not have seen the appellant insert his penis into her vagina since she lost consciousness after drinking the beer and juice. However, in rape cases, carnal knowledge of the victim by the accused may be proven not only by direct evidence but also by circumstantial evidence, provided that there is more than one circumstance; the facts from which the inferences are derived are proven; the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 31

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In the case at bar, the evidence on record shows that, on the fourth and fifth day of Richelles captivity, and while seated on the sofa in the sala of the ground floor of the appellants apartment, the appellant forced her to drink beer. She felt dizzy and lost consciousness, and when she came to, found herself in the room on the second floor of the apartment, completely naked, with the appellant beside her. Richelle felt severe pains in her vagina and was petrified when she saw plenty of blood on it. She washed her bloodied vagina with water. To quote the testimony of Richelle: Q Madam witness, lets go back to the 4th day that you were inside the room and that the following day you wake (sic) up early in the morning nude where the accused was nowhere in that place, when you wake (sic) up in that morning, what did you feel in your body? A My vagina is (sic) painful, sir. Q That is (sic) all that you felt, your vagina is (sic) painful, is it not? A Yes, sir. Q As a matter of fact, there was no blood in your vagina, is it not? A There was, sir. Q Small quantity or big quantity? A Big quantity, sir. Q What did you do with your vagina with full of blood as you testified? A I was afraid, sir.32 Q On the 5th day when you wake (sic) up in the sofa was your vagina bleeding? A Yes, sir.

Q On the 4th, on the 5th day that your vagina was bleeding, Madame witness, is it not a fact that you washed your vagina? A I washed it, sir. Q What did you use in washing your vagina? A Water, sir. Q With a soap? A No, sir.33 The testimony of Richelle, that the appellant succeeded in raping her, is corroborated by Dr. Jesusa Nieves medical findings that Richelle was no longer in a virgin state physically and that her hymen had a deep laceration at seven oclock when she was examined on October 3, 1991. Q Can you please tell us your findings with regard to the genital of the victim? A Upon the examination of the genie layer, the sex organ of the victim, the only pertinent findings Ive got was the laceration, a deep healed laceration at the hymen, sir. Q What does that signifies (sic)? A That a hard blunt object was forcefully inserted to the genie layer of the victim, sir. Q I notice in this findings (sic) of yours there is a laceration at 7:00 oclock, can you please clarify this? A The laceration at the 7 oclock only means that since the hymen is circular in appearance, it is being correlated to the face of the watch so when we say that the laceration is located at 7 oclock then it only means the same that the laceration or the tear is located in the same position as the number 7 of the clock, sir.

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Q Now, you claimed that upon your examination, one of your findings that [there]is a laceration of (sic) 7 oclock, what could have cause (sic) the laceration of (sic) 7 oclock? Atty. Mendoza: Already answered, Your Honor, the forceful insertion by blunt instrument. Fiscal Tacla: Q Would you consider the penis or a male organ as the blunt instrument which to have put (sic) into her organ? A Yes, sir. Q What was the state of the virginity of the lady when you conducted an examination upon her person? A She is no longer a virgin, sir.

The appellant asserted that Richelle consented to having sex with him, because she shouted, "Mang Domeng, tama na, ayaw ko na!," when he kissed and embraced her, and mashed her breasts. The appellant asserts that, in saying, "ayaw ko na," twelve-year-old Richelle was consenting to his prior sexual assaults. Richelles testimony reads: Q Throughout these days that the accused embraced you, kissed you and got hold of your breast, you did not shout? A I shouted everyday, sir. Q Will you tell this Court what words you used when you shouted? A I shouted, "Mang Domeng, tama na, ayaw ko na." Q Why, Madame witness, when you said "ayaw ko na," was there any instance that you agreed to Mang Domeng? FISCAL TACLA: What is that agreement all about, Your Honor?

Q What made you conclude that thing? ATTY. MENDOZA: A That is based on my findings at the hymen, sir.
34

We reject the appellants submission that he could not have raped Richelle during the period of September 17, 1991 to September 30, 1991 because when she was examined by Dr. Nieves on October 3, 1991, the lacerations in her hymen had already healed. The appellants reliance on the testimony of Dr. Nieves, that the healing period of the lacerations on the hymen was seven (7) days from the infliction of such lacerations, is misplaced. The doctor did not testify that the laceration in the hymen of Richelle could not have been healed in less than seven days. Indeed, the healing of wounds is dependent on several factors: (a) vascularity; (b) age of the person; (c) degree of rest or immobilization; and (d) nature of injury. 35 In fine, although the lacerations were already healed by the time Richelle was examined by Dr. Nieves on October 3, 1991, it is not impossible that Richelle was raped by the appellant for the first time on the fourth day of her captivity. It is well settled that healed lacerations do not necessarily negate rape.36

Well, "ayaw ko na" Your Honor, she presumed that ayaw na niya iyong nagaganap sa kanya. My question is on what was happening to her that she is now testifying, was there any occasion that she agreed. COURT: Answer. Witness: A Ayaw ko na po iyong ginagawa niya sa akin. Gusto ko nang umuwi sa amin. ATTY. MENDOZA: Q In all that occasions you did not box nor kick the accused, is it not?

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A I tried to fight back and I even pulled his hair, sir. 37 The appellants contention deserves scant consideration. As gleaned from Richelles testimony, she had been shouting and pleading to the appellant everyday to stop the lascivious acts and the sexual advances on her. She resolutely fought back and even pulled the appellants hair. In fine, when the appellant subjected Richelle to his bestial desires, Richelle resisted, to no avail. If, as claimed by the appellant, Richelle had consented to having sexual intercourse with him from September 16, 1991 to September 30, 1991, there would no longer have been a need for him to force her to drink beer and juice to render her dizzy and unconscious. The testimony of Richelle should not be considered in its truncated parts but in its entirety. The meaning of the words in a portion of the testimony of a witness should be considered, taking into account the entirety of the latters testimony. Besides, bearing in mind the chastity and bashfulness of a typical Filipina, especially one in her tender years, it is highly inconceivable for Richelle, a young girl, to consent to sexual acts with the appellant. Richelle was barely in her teens when the harrowing experience took place. We find it deviant for a twelve-year-old nave and unsophisticated grade school student to be consenting to sexual intercourse with the appellant. Richelles unwaivering sincerity and candor while testifying in court convinces us that she was constrained by her desire to seek justice for the bestial act committed upon her person.38 In fact, Richelle cried while recalling the sexual assaults on her. The appellant harped on his being a catechist of good moral character to escape conviction. This hardly justifies the conclusion that he is innocent of the crime charged. Indeed, religiosity is not always a badge of good conduct and faith is no guarantee against any sexual perversion. In the case of People vs. Diopita,39 this Court pronounced that an accused is not entitled to an acquittal simply because he is of good moral character and exemplary conduct. The affirmance or reversal of his conviction must be resolved on the basic issue of whether the prosecution had discharged its duty of proving his guilt beyond reasonable doubt. Since the evidence of the crime in the instant case is more than sufficient to convict, the evidence of the appellants good moral character cannot prevail. The appellant contends that Richelle consented to stay in his apartment; hence, he cannot be convicted of serious illegal detention. We agree with the appellants assertion that he is not guilty of serious illegal detention, but we do not agree that Richelle consented to stay in his apartment from September 17, 1991 until she was rescued on September 30, 1991.

Understandably, Richelle did not leave the appellants apartment on September 30, 1991. She had just surreptitiously left their house in a rebellious mood and had nowhere to go. She believed, at that time, that she was safe with the appellant, who was their neighbor and her brothers friend. However, when the appellant sat on her bed in the evening of the same day, completely naked, Richelle decided to leave the next day. She balked at leaving only when the appellant warned her that her mother, Nimfa, would berate her for sleeping at his apartment. Obviously, in warning Richelle of what to expect from her mother, the appellant wanted to instill fear in her mind to force her to remain in his apartment. Richelle should have left the apartment and returned home that day, and contend with her mothers anger for leaving their house and sleeping in the appellants apartment. However, Richelle, then barely twelve years old and a mere grade six pupil, cannot be expected to react and decide like an adult would. She could not have foreseen the appellants evil intent of raping her. Moreover, even if she wanted to leave the appellants apartment, she could not do so because the appellant did not allow her to leave. Frustrated in his first attempt, the appellant was determined to deflower Richelle. And the appellant succeeded, because on the fourth day of Richelles stay in the appellants apartment, the appellant forced her to drink beer which caused her to feel dizzy and rendered her unconscious. The appellant forthwith raped her. In light of the evidence on record, the original and primordial intention of the appellant in keeping Richelle in his apartment was to rape her and not to deprive her of her liberty. Hence, the appellant is guilty only of rape under Article 335, paragraph 1 of the Revised Penal Code, and not of the complex crime of serious illegal detention with rape under Article 267, in relation to Articles 335 and 48 of the Code.40 Hence, the trial court correctly sentenced the appellant to reclusion perpetua. Richelle could not have escaped from the appellants apartment during her stay therein from September 17, 1991 until September 30, 1991, because the appellant locked the door from the outside whenever he would go out. Richelle could move around the house, but the windows on the ground and second floors had grills with smoked glass.41 Richelle tried to open the windows, but she could not. We, likewise, find it incredible for Richelle to contrive a story of rape which would expose herself to a lifetime of shame, allow an examination of her private parts and face public trial.42 A rape victim who testifies in a categorical, straightforward, spontaneous and frank manner, and remains consistent, is a credible witness. The bare denial of the appellant cannot prevail over the positive testimony of Richelle. Well-settled is the rule that testimonies of young victims of rape deserve full credence and should not be

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so easily dismissed as a mere fabrication.43 In the case at bar, the trial court found the testimony of the victim to be trustworthy and convincing. It has been held in a long line of cases that the findings of the trial court on the credibility of witnesses and their testimonies are afforded great respect, since it is the trial judge who observes and monitors the behavior and demeanor of the witnesses. Finally, the assertion of the appellant that the charge against him was motivated by Richelles desire to extort money from him is preposterous. The appellants testimony to prove his claim is hearsay because he was merely told by his counsel of Richelles desire for money. The appellant failed to present his counsel to prove his claim. Besides, the appellant was merely a catechist and had no apparent sustainable means of livelihood, and only survived through the support given to him by his siblings. We agree with the findings of the trial court, viz: The accused tried to insinuate ulterior or improper motive on the part of the complainant by alleging that complainant Richelle charge[d] him with this offense because they are asking money as told [to] him by Atty. Mendoza. This allegation is patently unmeritorious and cannot be given any value by the court, as it was hearsay, and Atty. Mendoza was not presented to pursue or give light on this allegation. At any rate, the mother of the offended party, Nimfa Banluta, testified that she got the insinuation that the sister of the accused was willing to settle the case through her friend living near the street of the accused. 44 It is rudimentary that where there is no showing that the private complainant was impelled by any improper motive in making the accusation against the appellant, her complaint is entitled to full faith and credit. Hence, when the appellant could not present any sensible justification as to why the private complainant had accused him, such fact logically proves that no improper motive propelled the latter to charge the former of such a serious offense as rape.45 The trial court correctly awarded Richelle civil indemnity of P50,000. This is in the nature of actual and compensatory damages, and is obligatory upon conviction for rape.46 In addition, she is entitled to moral damages in the amount of P50,000. Moral damages are automatically awarded to rape victims without the necessity of proof, for it is assumed that she suffered moral injuries entitling her to such award. Such award is separate and distinct from civil indemnity.47

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Binangonan, Rizal, Branch 69, in Criminal Case No. 1590-B, finding the appellant guilty beyond reasonable doubt of the crime of serious illegal detention with rape is MODIFIED. Appellant DOMINGO SABARDAN is found guilty beyond reasonable doubt of rape under Article 335 of the Revised Penal Code and is sentenced to suffer the penalty of reclusion perpetua. The appellant is ORDERED to pay the victim, Richelle Banluta, P50,000 as civil indemnity and P50,000 as moral damages. No costs. SO ORDERED. Puno, Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

PEOPLE OF THE PHILIPPINES, appellee, vs. MICHAEL U. PAGALASAN alias Mike, RONNIE CABALO alias Romy, ALADIN CABALO, FERDINAND CORTEZ, a JOHN DOE identified only as FERNANDO, and a PETER DOE identified only as Bong, accused. MICHAEL U. PAGALASAN alias Mike, appellant. DECISION CALLEJO, SR., J.: This is an automatic review of the Decision of the Regional Trial Court of General Santos City, Branch 35, convicting appellant Michael U. Pagalasan of two counts of kidnapping for ransom of George Lim and his 10-year-old son Christopher Neal Lim and sentencing him to double death. The Antecedents The Spouses George and Desiree Lim and their three young children, one of whom was 10-year-old Christopher Neal Lim, resided at Villa Consuelo Subdivision, General Santos City. The spouses hired a security guard, Ferdinand Cortez, from the Valiant Security Agency to provide security services to the family. On September 4, 1994, at 11:00 p.m., the spouses and their children were in the masters bedroom watching television. The couples housemaid, Julita Sarno, was in the kitchen. She heard knocks on

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the kitchen door. Thinking that it was Ferdinand, she opened the door. Four men, about 55 to 56 tall, each armed with handguns, two of whom were holding hand grenades, barged into the kitchen. The four intruders wore bonnets over their faces. With them was Ferdinand, whose hands were tied behind his back. When asked by the masked men where her employers were, Julita responded that they were in their bedroom. On orders of the intruders, she knocked on the bedroom door. When Georges daughter opened the door, three of the masked men barged into the room, while the fourth masked man remained in the sala of the house. The three masked men shouted to George and Desiree: Walang mangyayari sa inyo basta ibigay ninyo ang kailangan namin. (Nothing will happen to you provided you give us what we want.) They ransacked the house, getting cash and valuables. The masked men gave Desiree a handwritten note, and dragged George and Christopher Neal Lim out of the bedroom through the sala to the garage, where Georges Nissan car was parked for the night. George saw Ferdinand in the sala with his hands tied behind his back. One of the masked men ordered George to hand over the key to his vehicle, to board the car and occupy the back seat along with Christopher. Father and son did as they were told. Two of the masked men positioned themselves on either side of George and Christopher. The third man drove the car, while the fourth sat on the passengers seat beside the driver. The car cruised along the national highway. When the car was nearing the Gambalan Kitchenette, George and Christopher were blindfolded. The masked men told them that they would be brought to Polomolok. After about fifteen minutes, the car stopped at Sitio Tupi. The two men who were seated at the back and the masked man seated beside the driver alighted from the car, bringing Christopher with them. George was transferred to the front seat beside the driver. George was told that he would be transported to Maasim. In the meantime, SPO2 Federico Pao, the duty officer of Police Precinct No. 2, received a radio report that George Lim and his son Christopher had been kidnapped. Police investigators were dispatched to the Lim residence to conduct an on-the-spot investigation. They brought Ferdinand and Julita to the police station for investigation. SPO2 Renato Daga-as, SPO2 Datur Villanueva and SPO1 Alimuddin Timbao were directed to establish a mobile checkpoint at the intersection of the national highway and a dirt road (Espina Road). The three policemen boarded a Tamaraw mobile car and parked it at the said intersection. At about thirty meters from the checkpoint, the masked driver of the Nissan vehicle saw the police car. Instead of running the car through the checkpoint, the driver stopped and switched off its headlights. He removed his bonnet and Georges blindfold, warning the latter not to make any false move. George looked at the driver, who turned out to be the appellant Michael Pagalasan.

The three police officers approached the car. Daga-as went to the right side of the car beside the passenger seat, while Villanueva went to the left side, near the drivers seat. For his part, Timbao proceeded to the cars rear end. Daga-as and Villanueva identified themselves to George and Michael as police officers on the lookout for a certain George Lim and his son who had been kidnapped in General Santos City. Daga-as inquired from George what his name was, and George replied that he was Albert Lim. The driver identified himself as Michael Pagalasan. George gave a false first name because he was afraid Michael might shoot him. Daga-as noticed that Georges fingers were trembling. Villanueva knocked at the door on the drivers side, and tried to open the same, but it was locked. When Michael himself opened the door, Villanueva pulled him out of the vehicle and brought him to the mobile car. Michael was suddenly in the custody of the policemen. George then identified himself as one of the kidnapped victims. He also told the policemen that his son was still with the other kidnappers. The policemen thereafter searched the Nissan car and found a .38 caliber handgun with six live bullets in its chamber and a grenade under the drivers seat. The policemen brought Michael and George to the police station where Ferdinand was being interrogated by police investigators. Ferdinand told George that he had nothing to do with the kidnapping, but before he could explain further, he was whisked into the investigation room. After giving a sworn statement to the police investigator, George was allowed to go home. Desiree gave George the handwritten letter earlier given to her by the kidnappers before they left the house that evening. In the letter, the spouses were warned not to coordinate with the military, nor to take any action in connection with the kidnapping without their knowledge or consent. They were also informed that the malefactors would communicate with the couple, whether by letter or through the telephone only through MUBARAK II or 2. Julita executed an affidavit in connection with the kidnapping. Police Inspector Antonio Evangelista ordered SPO4 Recio Aniversario to conduct a custodial investigation on Michael. Recio asked Michael if he wanted to execute an affidavit, and Michael replied that he was going to execute one. The police investigator inquired if he knew of any lawyer, to which Michael replied in the negative. The police investigator then suggested Atty. Tomas C. Falgui, a private practitioner, as his counsel. When Michael agreed, the police investigator phoned the lawyer, requesting the latter to assist Michael while undergoing custodial investigation. The lawyer agreed and forthwith proceeded to the police station. Michael gave his confession under custodial investigation with the assistance of Atty. Falgui. In his confession, Michael admitted that upon orders of Ronnie Cabalo, he and three other men, Aladin (Ronnies brother), a Muslim known as

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Ferdinand, and Bong (a resident of Purok Islam), had kidnapped George and his son Christopher. Ronnie Cabalo instructed Michael to use Georges vehicle to transport father and son to the banana plantation where Aladin, Ferdinand and Boy would alight with Christopher, and to thereafter return George to his house. Aladin had given him a handgun for his use. Ferdinand Cortez was in cahoots with them. He was at first reluctant to obey Ronnie, but relented when he was told not to be afraid and to use the grenade in case of trouble. George told him that he had already given money to Aladin, and that Michaels companions had taken some pieces of jewelry from him and his wife before they left the Lim residence. In the light of Michaels confession, farmer Hadji Aladin Malang Cabalo, Ronie Puntuan and Fernando Quizon were arrested and detained at Camp Fermin Lira Barracks, General Santos City. In the meantime, on September 6, 1994, George received another handwritten letter, ordering the release of Michael and Ronie Puntuan because they were innocent, and demanding P3,000,000 for Christophers release. On September 9, 1994, George received another handwritten letter dated September 9, 1994, this time from MUBARAK II or 2 informing him and his wife that the kidnappers did not want the military to be involved nor innocent people to be prejudiced. The spouses were also warned that their son would not be released alive unless Ronie Puntuan was freed in three days. On the same day at 3:25 p.m., Ronie Puntuan, through counsel, filed a motion with the MTC praying that he be transferred from the Camp Fermin Lira Barracks to the General Santos City Jail. In the morning of the following day, September 10, 1994, Christopher was rescued by policemen without any ransom being paid. On September 13, 1994, George executed a sworn statement relating to the incidents that happened from September 4, 1994 to September 10, 1994. Michael was charged with kidnapping for ransom and violation of PD 1866 before the Municipal Trial Court (MTC) of General Santos City. During the initial stage of the preliminary investigation by the MTC on September 6, 1994, Atty. Falgui appeared as Michaels counsel and testified on what transpired immediately before, during and after the custodial investigation, including Michaels execution of his extrajudicial confession. Michael was also placed on the witness stand and, with the assistance of counsel, testified on his extrajudicial confession. He affirmed the veracity of the contents of the said confession. Subsequently, Michael, through his mother, secured the services of Atty. Emmanuel V. Fontanilla. On

September 12, 1994, Michael executed an affidavit withdrawing his September 5, 1994 extrajudicial confession, in which he stated that: (a) he was not assisted by counsel of his own choice when he executed the extrajudicial confession; and (b) Ronie Puntuan, who was arrested and detained, was not Ronnie Cabalo. Michael also executed a counter-affidavit where he denied the accusations against him, and clarified that he was forced and intimidated into making his September 5, 1994 confession, and he was not provided with counsel of his own choice during custodial investigation. His constitutional rights under custodial investigation were allegedly not sufficiently explained to him. He filed the said affidavits with the MTC during the preliminary investigation. On September 23, 1994, the MTC issued a resolution finding probable cause for charging the accused with kidnapping for ransom. The Office of the City Prosecutor conducted a reinvestigation of the case. On October 4, 1994, the Office of the City Prosecutor issued a resolution ordering the release of Hadji Aladin Malang Cabalo on the ground that he was not the Aladin Cabalo referred to by Michael in his confession. An Information for violation of PD 1866 was filed against Michael on October 17, 1994 with the Regional Trial Court of General Santos City, Branch 22, docketed as Criminal Case No. 11062. On November 3, 1994, Michael, Ronnie Cabalo, Aladin Cabalo, Ferdinand Cortez, a certain John Doe identified as Fernando, and Peter Doe were charged with kidnapping for ransom in an Information, docketed as Criminal Case No. 11098, which reads: That on or about September 4, 1994, in General Santos City, Philippines, within the jurisdiction of this Honorable Court, the said accused, conspiring, and confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously kidnap George Lim, and his tenyear-old son, Christopher Neal Lim, for the purpose of extorting ransom from the said victims. The cases were raffled to Branch 22 of the Regional Trial Court. When arraigned in Criminal Case No. 11062 for Violation of PD 1866, Michael pleaded not guilty. On February 6, 1995, Michael, Ferdinand and Fernando Quizon were arraigned in Criminal Case No. 11098 and pleaded not guilty. Ronnie Cabalo and Aladin Cabalo remained at-large. On August 24, 1995, the judge hearing the cases inhibited himself. Both cases were re-raffled, assigned to, and were tried jointly by Branch 35 of the Regional Trial Court.

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During the trial, Michael, through counsel, admitted the truth of the contents of the affidavit executed by Julita Sarno. Michael also executed an affidavit on December 5, 1995 alleging inter alia that he was forced at gunpoint by Boy and Aladin to barge into the Lim residence and drive the latters car, and that he did not know Fernando Quizon. After the prosecution had presented all its witnesses, it filed a formal offer of its documentary evidence including Michaels December 15, 1995 Sworn Statement and his confession. Michael did not file any comment or opposition to the said offer. On May 3, 1996, the trial court issued an order admitting the prosecutions documentary evidence, including Michaels confession. After the prosecution had rested its case, Fernando Quizon filed a demurrer to evidence in Criminal Case No. 11098. On July 2, 1996, the court issued an order granting the demurrer to evidence of the said accused and acquitted him of the charge. The Defense and Evidence of the Accused Ferdinand Cortez denied kidnapping George and Christopher. He testified that he had been employed as a security guard by the Valiant Security Agency. He was assigned by the agency to protect George Lim and his family. On the evening of September 4, 1994, Ferdinand was washing Georges car in the garage. The house was surrounded by a 10-foot wall, and the gate was locked. Ferdinand was shocked when masked men, armed with handguns, suddenly arrived. They poked their guns at him, maltreated him, and tied his hands behind his back. The masked men knocked at the door of the house and when the housemaid Julita Sarno opened it, the men dragged Ferdinand towards the entrance, to make it appear that he was the one knocking. The masked men then barged into the sala and tied Julitas hands. Ferdinand claimed he never met any of the kidnappers before September 4, 1994. He was puzzled why he was being implicated in the case. For his part, Michael testified that he was a Muslim, 19 years of age, and an elementary school graduate. He made a living as a conductor of his uncles jeepney. At night, the jeepney was parked in Tambler, and it was where he usually slept. On the evening of September 4, 1994, at about 9:00 p.m., he was in their house at Purok Islam public market, General Santos City. His friend Bong arrived, and invited him for a stroll and to accompany the latter to get a motorcycle. Michael agreed. They took a tricycle and arrived at the Villa Consuelo Subdivision. Michael was surprised when the tricycle stopped near the gate of the Lim residence and masked men suddenly appeared, poking their guns at him. Bong fled, leaving Michael alone to fend for himself. The masked men ordered Michael to drive a car, and warned him that if he refused, he would be killed. Momentarily, one of the men emerged from the house, with George Lim in tow. George gave the key to his Nissan

car to one of the kidnappers, who in turn handed it over to Michael. The men forced George and his son Christopher to board the car. Father and son were seated between two masked men. Afraid for his life, Michael was forced to drive the car with one of the kidnappers pointing a gun at him, seated to his right at the passengers side. The kidnappers ordered Michael to drive the car towards the direction of Barangay Ligaya. When the car reached a dark portion of the road in Barangay Ligaya, three of the men alighted, bringing Christopher with them. Michael then pleaded to George to bring him first to Tambler, where the jeepney of his uncle was parked. Michael wanted to sleep there instead of going home. George agreed, and drove the car himself through Barangay Makar. George told Michael that they had to travel along Espina road, a dirt road, instead of the regular road because they might encounter policemen, and Christopher might be killed by his kidnappers. However, the car had to stop at the intersection of the national highway and Espina Road when George saw policemen and the mobile police car parked at the intersection. Michael was arrested by the police, blindfolded, and brought to the mobile car where he was also mauled. His head was banged against the sides of the mobile car. At the precinct, Michael was mauled anew by the policemen. It was only after he had given his statement to a police investigator that Atty. Falgui arrived and told Michael, I am your lawyer. Atty. Falgui instructed Michael to tell the whole truth. When his mother Camaria Opong visited him, he told her that he had been blindfolded and mauled at the station, and that because of this, his body ached. She saw a big hump in his head. On September 8, 1994, she secured the services of Atty. Fontanilla as counsel of her son. The lawyer went to the City Jail and talked to Michael. Michael showed the lawyer the contusions and bruises on his body, and the scratches on his neck. Michael told the lawyer that he had been maltreated by an inmate at the detention cell. He also narrated that he knew nothing about the kidnapping and that he was only hired by somebody to drive a car. Michael assured the lawyer that he was not aware of the purpose of the culprits in kidnapping George and Christopher. On September 9, 1994, Atty. Fontanilla executed an affidavit reiterating the information Michael conveyed to him. On September 16, 1994, Michael filed an urgent motion for medical check-up, which the court granted. Dra. Virginia Ramirez, Officer-In-Charge of the City Integrated Health Services, examined Michael on September 22, 1994 and found him suffering from myalgia residual or muscle pains due to mauling, which she surmised took place about one week to ten days before the examination. She issued a medical certificate of the said examination.

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On September 24, 1997, the trial court rendered judgment acquitting Ferdinand Cortez and convicting Michael of kidnapping for ransom, the decretal portion of which reads: JUDGMENT WHEREFORE, premises considered, the accused is hereby sentenced as follows: In Criminal Case No. 11062 for failure of the prosecution to prove the accusation against the accused Michael Pagalasan beyond reasonable doubt, he is hereby ACQUITTED of the crime charged. In Criminal Case No. 11098, the accused Michael Pagalasan is hereby found guilty of the crime of kidnapping for ransom as defined and penalized under Article 267 as amended by Section 8 of Republic Act 7659, and there being no modifying circumstance to consider, he is sentenced to suffer the EXTREME PENALTY OF DEATH insofar as the case of George Lim is concerned. The same penalty of death shall also be imposed against Michael Pagalasan in the case of Christopher Neal Lim who was kidnapped on the same occasion and was released only on the sixth day after his captivity. The case of Ferdinand Cortez, for lack of sufficient evidence to convict him, he is hereby ACQUITTED of the crime charged. SO ORDERED. The trial court ruled in Criminal Case No. 11098 that with or without the confession of Michael, the prosecution adduced proof beyond reasonable doubt that he, in conspiracy with three others, kidnapped George and Christopher. It found the testimony of George straightforward and positive, credible and entitled to full probative weight. The trial court sentenced Michael to double death on its finding that he and his cohorts kidnapped George and Christopher for the purpose of extorting ransom. It disbelieved Michaels confession implicating Ferdinand Cortez, and acquitted the latter for failure of the prosecution to prove his guilt beyond reasonable doubt. The trial court likewise acquitted Michael in Criminal Case No. 11062. Michael, now the appellant, asserts that:

I THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT FOR THE CRIME OF KIDNAPPING FOR RANSOM OF CHRISTOPHER NEAL LIM DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSEDAPPELLANT FOR THE CRIME OF KIDNAPPING FOR RANSOM OF ONE GEORGE LIM WITHOUT ANY BASIS IN FACT AND IN LAW. III THE TRIAL COURT ERRED IN NOT CONSIDERING THE DEFENSE INTERPOSED BY THE ACCUSED-APPELLANT AND IN GIVING CREDENCE TO THE INCONSISTENT TESTIMONY OF GEORGE LIM. The appellant is guilty of kidnapping Christopher under Article 267 of the Revised Penal Code. On the first assignment of error, the appellant avers that the prosecution failed to prove his guilt beyond cavil of doubt for the crime of kidnapping Christopher. Georges testimony that the gun and hand grenade were found in the car, under the seat beside the driver is inconsistent with his own statement before the police investigator that the said gun and grenade were found in the appellants possession; hence, the testimony of George is incredible and barren of probative weight. The case for the prosecution was enfeebled by its failure to present Christopher to testify on his kidnapping and to corroborate the testimony of his father. The failure of the prosecution to present Christopher as a witness raised the presumption that if he had been so presented, he would have testified on matters adverse to the prosecution. For its part, the Office of the Solicitor General contends that the testimony of George, its principal witness, as well as those of its other witnesses, is sufficient to prove, beyond reasonable doubt, that the appellant conspired with three others in kidnapping Christopher for ransom. There was no need for the prosecution to present Christopher to testify on his kidnapping, as his testimony would be merely corroborative of his fathers account of events.

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The contention of the appellant is barren of merit. Article 267 of the Revised Penal Code as amended by Republic Act No. 7659 reads: ART. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. 2. If the kidnapping or detention shall have lasted more than three days. If it shall have been committed simulating public authority.

The essential elements for this crime is the deprivation of liberty of the victim under any of the above-mentioned circumstances coupled with indubitable proof of intent of the accused to effect the same. There must be a purposeful or knowing action by the accused to forcibly restrain the victim coupled with intent. Judge Learned Hand once called conspiracy the darling of the modern prosecutors nursery. There is conspiracy when two or more persons agree to commit a felony and decide to commit it. Conspiracy as a mode of incurring criminal liability must be proven separately from and with the same quantum of proof as the crime itself. Conspiracy need not be proven by direct evidence. After all, secrecy and concealment are essential features of a successful conspiracy. Conspiracies are clandestine in nature. It may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that they had acted with a common purpose and design. Paraphrasing the decision of the English Court in Regina v. Murphy, conspiracy may be implied if it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent of each other, were, in fact, connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment. To hold an accused guilty as a co-principal by reason of conspiracy, he must be shown to have performed an overt act in pursuance or furtherance of the complicity. There must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. The United States Supreme Court in Braverman v. United States, held that the precise nature and extent of the conspiracy must be determined by reference to the agreement which embraces and defines its objects. For one thing, the temporal dimension of the conspiracy is of particular importance. Settled as a rule of law is that the conspiracy continues until the object is attained, unless in the meantime the conspirator abandons the conspiracy or is arrested. There is authority to the effect that the conspiracy ends at the moment of any conspirators arrest, on the presumption, albeit rebuttable, that at the moment the conspiracy has been thwarted, no other overt act contributing to the conspiracy can possibly take place, at least as far as the arrested conspirator is concerned. The longer a conspiracy is deemed to continue, the greater the chances that additional persons will be found to have joined it. There is also the possibility that as the conspiracy continues, there may occur new overt acts. If the conspiracy has not yet ended, then the hearsay acts and declarations of one conspirator will be admissible against the other conspirators and one conspirator may be held liable for substantive crimes committed by the others.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female, or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by RA No. 7659). For the accused to be convicted of kidnapping, the prosecution is burdened to prove beyond reasonable doubt all the elements of the crime, namely: (a) the offender is a private individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the commission of the offense any of the following circumstances is present: (1) the kidnapping or detention lasts for more than three days; (2) it is committed by simulating public authority; (3) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (4) the person kidnapped or detained is a minor, female, or a public officer. If the victim of kidnapping and serious illegal detention is a minor, the duration of his detention is immaterial. Likewise, if the victim is kidnapped and illegally detained for the purpose of extorting ransom, the duration of his detention is immaterial.

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Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of a common design as one of its probable and natural consequences even though it was not intended as part of the original design. Responsibility of a conspirator is not confined to the accomplishment of a particular purpose of conspiracy but extends to collateral acts and offenses incident to and growing out of the purpose intended. Conspirators are held to have intended the consequences of their acts and by purposely engaging in conspiracy which necessarily and directly produces a prohibited result that they are in contemplation of law, charged with intending the result. Conspirators are necessarily liable for the acts of another conspirator even though such act differs radically and substantively from that which they intended to commit. The Court agrees with the ruling of the Circuit Court of Appeals (Second District) per Judge Learned Hand in United States v. Peoni that nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understood it; if later comers change that, he is not liable for the change; his liability is limited to the common purpose while he remains in it. Earlier, the Appellate Court of Kentucky in Gabbard v. Commonwealth held that: The act must be the ordinary and probable effect of the wrongful acts specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent project of the mind of one of the confederates, outside of or foreign to the common design, and growing out of the individual malice of the perpetrator. Equally persuasive is the pronouncement of the Circuit Court of Appeals (Second District) in United States v. Crimms, that it is never permissible to enlarge the scope of the conspiracy itself by proving that some of the conspirators, unknown to the rest, have done what was beyond the reasonable intendment of the common understanding. This is equally true when the crime which the conspirators agreed upon is one of which they severally might be guilty though they were ignorant of the existence of some of its constitutive facts. Also, while conspirators are responsible for consequent acts growing out of the common design they are not for independent acts growing out of the particular acts of individuals. In this case, the evidence on record inscrutably shows that the appellant and his three cohorts were armed with handguns; two of them had hand grenades, and all of them had masks over their faces. They gained entry into the Lim residence after overpowering the security guard Ferdinand and the housemaid Julita, and tying their hands behind their backs. One of the masked men remained in the sala, while the three others barged into the bedroom of George and Desiree, and kidnapped George and his ten-year-old son Christopher. The appellant and his cohorts forced father and son to

board Georges car. The appellant drove the car, dropped off Christopher and his cohorts at Sitio Tupi, and drove on with George in the car towards the direction of Maasim. The collective, concerted and synchronized acts of the appellant and his cohorts before, during and after the kidnapping constitute indubitable proof that the appellant and his three companions conspired with each other to attain a common objective: to kidnap George and Christopher and detain them illegally. The appellant was a principal by direct participation in the kidnapping of the two victims. The trial court found the testimony of George straightforward and positive, and entitled to credit and full probative weight. The legal aphorism is that the findings of facts of the trial court, its calibration of the testimonies of witnesses and of their probative weight, its conclusions anchored on its findings are accorded high respect by the appellate court, if not conclusive effect, because of the unique advantage of the trial court of observing at close range the demeanor, conduct and deportment of witnesses as they regale the trial court with their testimonies. It is true that the appellate court is not bound by the findings and conclusions of the trial court if the latter ignored, misunderstood, misapplied or misinterpreted cogent facts and circumstances, which, if considered, would change the outcome of the case. This ruling, however, is inapplicable in the case at bar, since the appellant failed to establish that the trial court erred in this wise. George testified that when the policemen found the gun and grenade inside his car, the appellant was already at the police station. However, in his September 13, 1994 Affidavit, George stated that the policemen found the gun when the appellant was frisked, while the grenade was spotted under the passengers seat, beside the driver. This seeming inconsistency between the two statements does not discredit his testimony nor his credibility for the following reasons: (a) it is of judicial knowledge that affidavits being taken ex parte are almost always incomplete and often inaccurate and are generally inferior to the testimony of a witness in open court; (b) the credibility of Georges testimony cannot be impeached by the inconsistent statements contained in his sworn statement because the said statement was not admitted in evidence; and Section 34, Rule 132 of the Revised Rules of Evidence provides that the Court shall not consider evidence which has not been formally offered; besides, George was not confronted with his sworn statement and accorded an opportunity to explain the inconsistency; (c) the inconsistency refers to trivial, minor and collateral matters and not to the substance of his testimony. Such minor inconsistency even enhances its veracity as the variances erase any suspicion of a rehearsed testimony. A

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truth-telling witness is not always expected to give an error-free testimony, considering the lapse of time and the treachery of human memory. Neither is the case for the prosecution impaired by the failure of the prosecution to present Christopher as its witness. It bears stressing that Georges testimony is corroborated by Julita and the three arresting officers. Besides, case law has it that the testimony of a single witness, if positive and credible, is sufficient to sustain a judgment of conviction. The law does not require the testimonies of at least two witnesses for the conviction of an accused for kidnapping and serious illegal detention. The prosecution has the discretion to decide on who to call as witness during the trial, and its failure to present a particular witness does not give rise to the presumption that evidence willfully suppressed would be adverse if withheld, where the evidence is at the disposal of the appellant and is merely cumulative or corroborative. In this case, the testimony of George is, by itself, independently of Christophers testimony, sufficient proof of the guilt of the appellant. George had personal knowledge of the facts and circumstances of the kidnapping, as he himself had been kidnapped along with his young son. His failure to testify on where Christopher was detained after the three cohorts of the appellant had alighted from the car with Christopher, and the circumstances surrounding the rescue do not weaken the case of the prosecution, as the said facts and circumstances had occurred after the crime of kidnapping had already been a fait accompli. The prosecution failed to prove that in kidnapping George and Christopher, the appellant and his cohorts intended to extort ransom. The trial court convicted the appellant of kidnapping George and Christopher for ransom and sentenced him to double death on its finding that the appellant and his co-accused conspired to extort ransom for the release of the victims. For his part, the appellant contends that the prosecution failed to prove the element of extorting ransom. The appellant argues that he cannot be held liable for kidnapping for ransom, even if after his arrest on September 4, 1994 his co-conspirators actually demanded ransom for Christophers release. The prosecution failed to prove that he had knowledge of and concurred with the said demand. The Court agrees with the appellant. The second paragraph of Article 267 of the Revised Penal Code reads:

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. The provision is pursuant to Rep. Act No. 1084 approved on June 15, 1984 derived from the so-called Lindbergh Law in the United States, approved on June 22, 1932, as amended on May 13, 1934. To warrant the imposition of the death penalty for the crime of kidnapping and serious illegal detention for ransom, the prosecution must prove beyond reasonable doubt the following: (a) intent on the part of the accused to deprive the victim of his liberty; (b) actual deprivation of the victim of his liberty; (c) motive of the accused, which is extortion of ransom from the victim or any other person. In kidnapping or serious illegal detention for ransom, the purpose of extorting ransom is a qualifying circumstance which must be alleged in the Information and proved by the prosecution as the crime itself by words and overt acts of the accused before, during and after the kidnapping and detention of the victim. Neither actual demand for nor actual payment of ransom is necessary for the crime to be committed. Although kidnapping for a certain purpose is a qualifying circumstance, the law does not require that the purpose be accomplished. Ransom employed in the law is so used in its common or ordinary sense: a sum of money or other thing of value, price, or consideration paid or demanded for redemption of a kidnapped or detained person, a payment that releases from captivity. It may include benefits not necessarily pecuniary which may accrue to the kidnapper or a third person as a condition for the release of the victim. In this case, the prosecution was able to prove beyond reasonable doubt that the appellant conspired with three others to kidnap the victims. However, it failed to prove that they intended to extort ransom from the victims themselves or from some other person, with a view to obtaining the latters release. The kidnapping by itself does not give rise to the presumption that the appellant and his co-conspirators purpose is to extort ransom from the victims or any other person. The only evidence adduced by the prosecution to prove the element of extorting ransom are the three handwritten letters: the first was received by Desiree on September 4, 1994, while the second and third letters were received by George on September 6 and 9, 1994, respectively. The handwritten letter received by Desiree on September 4, 1994, first letter for brevity, reads:

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Para Sa Inyo Mr. & Mrs. Lim, Una wag na wag kayong gumawa ng hakbang na hindi namin alam o gusto, lalong-lalo na sa pakikipag-usap sa militar o magkoordinate sa militar ay hindi namin gustong mangyari ang ganon mga sistem. Ang pangalawa, wag na wag kayong tumanggap ng negotiator na walang palatandaan na galing sa amin, pakiusap lang yon na dapat ninyong sundin, madidisgrasya ang aming dala kung kayoy magkakamali ng hakbang. Maliwanag sana sa inyo ang aming mga salaysay. Note Palatandaan na galing sa aming hakbang ay ito MR. MUBARAK II or 2 Sulat man o telephone The letter received by George on September 6, 1994, second letter for brevity, reads: Ronie Puntuan Michael Pagalasan Mr. G. Lim palayain ninyo ang suspek ninyo. Wala silang kasalanan bago natin tapusin ang usapan tatlong milyong piso (3,000,000) katumbas ng kalayaan ng mahal ninyong anak. Paalisin ang mga sundalo. Kailangan ang Black Out News. Huwag kang magkakamali Mr. Lim. Kunting sipyot mo patay ang anak mo. Isang araw lamang ang tagal namin sa inyo. (Sgd.) The handwritten letter received by George on September 9, 1994, third letter for brevity, reads: Para sayo Mr. & Mrs. Lim, Mr. Lim, gusto ko lang ipaabot sayo ang maikli kong kataga. Unang-una, ayaw namin na mga asong militar na makialam. Pangalawa, ayaw namin sa

grupo na idamay ang tao na walang-alam. Alalahanin mo mabuti lahat ng mga kataga na iniwan ko sayo, Mr. Lim. Ang taong dinampot ng militar sa purok islam na si Ronie, ang taong yan walang conection ( sic) sa grupo, sa madaling usapan, Mr. Lim, alalahanin mo ang anak mo sa oras na tatlong araw na taong yan hindi makalabas. Ang isipin mo ang anak mo hindi rin makalabas hanggat sa mabulok sa lupa (maliwanag). (Sign) Palatandaan MUBARAK II - 2 As gleaned from the three letters, there was no demand for ransom in exchange for George and Christophers liberty. While there is a demand for ransom of P3,000,000 in the second letter, and a demand for the release of Ronie Puntuan within three days in the third letter, the said demands are in consideration of Christophers release from custody, and not that of George. Even then, the prosecution failed to adduce evidence that the second letter demanding ransom in the amount of P3,000,000 for the release of Christopher actually came from the appellant and his co-conspirators. It bears stressing that in the first letter, the kidnappers made it clear to the couple that only those communications, whether by letter or by telephone, bearing the name MR. MUBARAK II or 2 came from them: Note Palatandaan na galing sa aming hakbang ay ito MR. MUBARAK II or 2 Sulat man o telephone The second letter received by George was signed by an unidentified person. It was not stated that the letter came from MUBARAK II-2. That the second letter could not have come from the appellant and his cohorts is buttressed by the fact that the third letter, which came from MUBARAK II2, does not even mention any demand for ransom in the amount of P3,000,000 for Christophers release.

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The Court can only surmise, but it is possible that the signatory and sender of the second letter could have been acting independently of the appellant and his co-conspirators in order to profit from the kidnapping. It bears stressing that the kidnapping of Christopher and George was already known when the appellant was arrested on September 4, 1994, and the crime had already been reported to the police authorities. Persons other than the coconspirators of the appellant could have written the letter. Since there is no evidence that the signatory and sender of the second letter is a co-conspirator of the appellant, the latter is not bound by the said letter, conformably to Section 28, Rule 130 of the Revised Rules of Evidence which reads: Sec. 28. Admission by third party. The rights of a party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. Even if it is assumed for the nonce that the second letter came from a coconspirator, the same is not binding on the appellant, absent evidence aliunde that he knew of and concurred with the said ransom demand. It bears stressing that when George received the second letter on September 6, 1994, the appellant had already been arrested and detained. The conspiracy forged by the appellant and his cohorts on or before September 4, 1994 had already ceased, when on the said date, the appellant was arrested by the policemen and detained. Neither is the third letter admissible in evidence against the appellant to prove that he conspired with others to demand the release of Ronie Puntuan in consideration for Christophers freedom. The appellant and his cohorts could not have planned to demand ransom for the release of Ronie Puntuan as early as September 4, 1994, the date of the kidnapping: Ronie had not yet been arrested on this date. The appellant was arrested first, and Ronies detention was only to follow. Furthermore, the third letter was sent to George on September 9, 1994. At that point, the appellant had already been arrested by the policemen, and was already in jail. There is no evidence that while in jail, the appellant had knowledge of and concurred with the said ransom demand. It may be reasonably inferred that the appellants coconspirators could have decided to demand Ronie Puntuans release as a consideration for Christophers liberty, while the appellant was already languishing in jail. The said demand for ransom was a new and independent project of the appellants co-conspirators, growing out of their own malice, without any a priori knowledge on the part of the appellant or his post facto concurrence therewith. Indeed, the records show that on September 9,

1994, the very day the co-conspirators sent the third letter to George, Ronie Puntuan through counsel Atty. Jose Jerry L. Fulgar, also the counsel for the appellant, filed a motion with the MTC, praying that he be detained at the General Santos City Jail: WHEREFORE, premises considered, it is most respectfully prayed that an order be please issued directing that accused Ronie Puntuan be please detained at General Santos City Jail with the instruction that the said accused be separated from his co-accused as desired by the Police Officers. That the appellant plotted with his co-conspirators to demand the release of Ronie Puntuan as a condition for Christophers liberty is too far-fetched, considering that Ronie and the appellant had the same lawyer. Ronie Puntuan himself, through his and the appellants counsel, prayed to the court that he be transferred from Camp Fermin Lira Barracks to the General Santos City Jail. The appellant is also guilty of slight illegal detention of George under Article 268 of the Revised Penal Code. Aside from convicting the appellant of kidnapping Christopher, the trial court also convicted him of kidnapping George under Article 267 of the Revised Penal Code. But the Office of the Solicitor General contends that the appellant is guilty of another felony: slight illegal detention under Article 268 of the Revised Penal Code, because none of the circumstances enumerated in Article 267 of the Revised Penal Code is present in the kidnapping and detention of George. The prosecution may have failed to prove that the appellant and his co-conspirators intended to extort ransom for Georges release; however, as a matter of substantive law, the appellant may be held guilty of two separate crimes, although he and his co-conspirators kidnapped George and Christopher on the same occasion and from the same situs. As a matter of procedural law, the appellant may be convicted of slight illegal detention under the Information for kidnapping for ransom as the former is necessarily included in the latter crime. The Court agrees with the Office of the Solicitor General. The appellant is guilty of slight illegal detention under Article 268 of the Revised Penal Code which reads: Art. 268. Slight illegal detention. The penalty of reclusion temporal shall be imposed upon any private individual who shall commit the crimes described

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in the next preceding article without the attendance of any of the circumstances enumerated therein. The same penalty shall be incurred by anyone who shall furnish the place for the perpetration of the crime. If the offender shall voluntarily release the person so kidnapped or detained within three days from the commencement of the detention, without having attained the purpose intended, and before the institution of criminal proceedings against him, the penalty shall be prision mayor in its minimum and medium periods and a fine not exceeding seven hundred pesos. (As amended by Republic Act No. 18). While the epigraph or title of the article mentions only slight illegal detention, kidnapping committed in connection with the lower offense of slight illegal detention is also covered by the article. The felony has the following essential elements: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives him of his liberty. 3. That the act of kidnapping or detention is illegal. 4. That the crime is committed without the attendance of any of the circumstances enumerated in Art. 267. The crime of slight illegal detention is consummated upon the occurrence of all the elements thereof. A day, in the last paragraph of Article 268 of the Revised Penal Code, should be understood as twenty-four hours, to be counted from the deprivation of the liberty of the victim until the cessation thereof. As Cuello Calon put it: El plazo de los tres dias de veinte cuatro horas y desde el momento de la privacion de libertad si en que esta cesare. The rescue or escape of the victim within three days from his kidnapping and detention is not an exempting circumstance. The voluntary release by the offender of the victim within three days from his detention, without the offender having attained his purpose and before the institution of criminal proceedings against him for slight illegal detention, is not an exempting circumstance; it merely serves to reduce the penalty to prision mayor in its maximum and medium periods and a fine not exceeding P700.

In this case, the appellant is a private individual. George had been kidnapped and detained illegally by the appellant and his cohorts, but only for less than a day. George regained his freedom after the appellant had been arrested at the intersection of the national highway and Espina Road. There is no evidence that the appellant and his cohorts kidnapped George for the purpose of extorting ransom for his release. There is likewise no evidence that they inflicted any serious physical injuries on George, or simulated public authority, or threatened to kill him. Furthermore, there is no evidence that the appellant and his cohorts intended to detain the victim for more than three days. Although the appellant and his co-conspirators kidnapped George and Christopher on the same occasion and from the same situs, the appellant is guilty of two separate crimes: kidnapping under Article 267 of the Revised Penal Code, and slight illegal detention under Article 268 of the Revised Penal Code. The appellant and his co-conspirators were animated by two sets of separate criminal intents and criminal resolutions in kidnapping and illegally detaining the two victims. The criminal intent in kidnapping Christopher was separate from and independent of the criminal intent and resolution in kidnapping and detaining George for less than three days. In the mind and conscience of the appellant, he had committed two separate felonies; hence, should be meted two separate penalties for the said crimes: one for kidnapping under Article 267 of the Revised Penal Code and another for slight illegal detention under Article 268 of the same code. The felony of slight illegal detention is necessarily included in the crime of kidnapping for ransom; thus, the appellant may be convicted of the former crime under an Information for kidnapping for ransom. PENALTIES FOR THE CRIMES COMMITTED BY THE APPELLANT The crimes committed by the appellant were aggravated by dwelling, the victims having been kidnapped in their house; by the use of motor vehicle, the victims having been transported by the appellant from their house with the use of Georges car; and by a band, the crime having been committed by the appellant and three co-conspirators. However, the Court cannot consider these aggravating circumstances in determining the proper penalties for the said crimes, because the same were not alleged in the Information as mandated by Sections 8 and 9, Rule 110 of the Revised Rules of Criminal Procedure. Although the said rules took effect after the commission of the crimes by the appellant, the same is favorable to the appellant; hence, should be applied retroactively.

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The appellant is not entitled to the privileged mitigating circumstance under the second paragraph of Article 268 of the Revised Penal Code because he did not voluntarily release George within three days from the kidnapping. George was recovered by the policemen at the intersection of the national highway and Espina Road. The prescribed penalty for kidnapping under Article 267 of the Revised Penal Code as amended by Rep. Act No. 7659 is reclusion perpetua to death. There being no aggravating circumstance or modifying circumstance in the commission of the crime, the proper penalty for the said crime is reclusion perpetua, conformably to Article 63 of the Revised Penal Code. The prescribed penalty for slight illegal detention is reclusion temporal in its full period, with a range of twelve years and one day to twenty years. To determine the minimum of the indeterminate penalty, the penalty shall be reduced by one degree, prision mayor, which has a range of six years and one day to twelve years. The minimum of the indeterminate penalty shall be taken from the full range of the penalty at the discretion of the Court. The maximum of the indeterminate penalty shall be taken from the medium period of reclusion temporal, conformably to Article 64, paragraph 1 of the Revised Penal Code. Hence, the appellant shall suffer an indeterminate penalty of nine years and four months of prision mayor in its medium period as minimum, to sixteen years and five months of reclusion temporal in its medium period as maximum. CIVIL LIABILITIES OF THE APPELLANT Although the prosecution adduced testimonial evidence that the appellant and his co-conspirators ransacked the bedroom of the victims and took cash and valuables, the prosecution nevertheless failed to adduce any documentary evidence to prove the amount of the said cash and the value of the jewelry. Hence, Spouses George and Desiree Lim are not entitled to actual damages. Under Article 2219, paragraph 5 of the New Civil Code, moral damages may be recovered. In this case, the prosecution adduced testimonial evidence that for the crimes committed by the appellant and his co-conspirators, Spouses George and Desiree suffered mental anguish, fright and serious anxiety caused by the kidnapping of George and their son Christopher. Considering the factual milieu in this case, the Court believes that the said spouses are entitled to moral damages in the amount of P100,000 for the kidnapping of Christopher, and the amount of P50,000 for the illegal detention of George. The appellant is also liable to the spouses for

exemplary damages in the total amount of P50,000 for the two crimes conformably with current jurisprudence. IN LIGHT OF ALL THE FOREGOING, the Decision dated September 27, 1997 of the Regional Trial Court of General Santos City, Branch 35, is AFFIRMED WITH MODIFICATIONS. Appellant Michael Pagalasan alias Mike is found guilty of kidnapping under Article 267, paragraph 4 of the Revised Penal Code and there being no modifying circumstances in the commission of the crime is hereby sentenced to suffer the penalty of reclusion perpetua. Appellant Michael Pagalasan alias Mike is found guilty beyond reasonable doubt of the crime of slight illegal detention under Article 268 of the Revised Penal Code and there being no modifying circumstances in the commission of the crime is hereby sentenced to suffer an indeterminate penalty of from nine years and four months of prision mayor in its medium period as minimum to sixteen years and five months of reclusion temporal in its medium period as maximum. The said appellant is ordered to pay to Spouses George and Desiree Lim the total amount of P150,000 as moral damages; and P50,000 as exemplary damages in the two cases. Costs de oficio. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, CarpioMorales, and Azcuna, JJ., concur. G.R. No. 132895 March 10, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. ELIZABETH CASTILLO and EVANGELINE PADAYHAG, appellants.

DECISION

PER CURIAM:

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Before us on automatic review is the Decision1 of the Regional Trial Court of Paraaque, Branch 260, National Capital Judicial Region, in Criminal Case No. 95-86, finding appellants Elizabeth Castillo ("Castillo") and Evangeline Padayhag ("Padayhag") guilty of Qualified Kidnapping and Serious Illegal Detention2 and sentencing them to death. The Information3 charging Castillo, Padayhag and Imelda Wenceslao with the crime of kidnapping, reads: That on or about March 1, 1995, in Paraaque, Metro Manila, Philippines, and within the jurisdiction of the Honorable Court, said accused ELIZABETH CASTILLO and EVANGELINE PADAYHAG, conspiring together, confederating, and mutually helping one another, did then and there willfully, unlawfully and feloniously kidnap, carry away, and seriously detain HORACIO CEBRERO IV @ "Rocky", a five years old child (sic), which kidnapping or serious detention lasted for more than three (3) days thereby depriving him of his liberty, and which was committed for the purpose of extorting ransom from the parents of the victim, to the damage and prejudice of the victim himself and his parents. The said accused IMELDA CASTILLO WENCESLAO, without having participated in the said crime as a principal, did then and there willfully, unlawfully and feloniously participated (sic) in the execution of the crime by previous and simultaneous acts by allowing and furnishing the use of her residence where victim Horacio Cebrero IV was kept knowing him to have been taken by principal accused Elizabeth Castillo and Evangeline Padayhag without the consent of his parents. CONTRARY TO LAW. Upon arraignment on 10 May 1995, both Castillo and Padayhag initially pleaded guilty. However, on 18 May 1995, Castillo and Padayhag withdrew their plea of guilt. They entered a plea of not guilty on 3 August 1995. Imelda Wenceslao remains at large. The prosecution submitted documentary evidence and presented eight witnesses, namely: (1) Horacio Cebrero IV ("Rocky"), the victim; (2) Rosanna Baria, the victims "yaya"; (3) Luis Cebrero, the victims father; (4) Sandra Cebrero, the victims mother; (5) Staff Sgt. Alejandro Delena of the Philippine National Police ("PNP"); (6) Wivino Demol, a member of the Armed Forces of the Philippines ("AFP") Intelligence Security Group, army surveillance and

search team; (7) Capt. Raniel Ramiro, also of the AFP Intelligence Security Group; (8) and Staff Sgt. Manual Iglesias of the PNP. The defense presented only two witnesses: Castillo and Padayhag themselves. The Office of the Solicitor General ("OSG") summarized the prosecutions version of the incident in the appellees brief, as follows: On March 1, 1995, Rosanna Baria was employed as one of the household helpers of Mr. and Mrs. Luis De Guzman Cebrero at their residence in Classic Homes, B. F. Paraaque, Metro Manila (p. 26, tsn, August 3, 1995). In the morning of said date, Femie, another housemaid of the Cebreros and Barias relative, bathed and dressed up Rocky, the couples six year old son and afterwards advised Baria that someone, who was also a Cebrero househelper, will fetch Rocky (p. 28, supra). At about 8:00 a.m., a tricycle arrived. On board was a woman, whom Baria pointed to in court and who gave her name as Evangeline Padayhag (p. 26, supra). Baria assisted Rocky to board the tricycle. The tricycle brought Rocky and the woman, whom Rocky pointed to in court and who gave her name as Evangeline Padayhag (p. 9, tsn, August 3, 1995), to a nearby "Mcdonalds". Thereat, they were joined by another woman (p. 13, supra) whom Rocky pointed to in court and who gave her name as Elizabeth Castillo (p. 9, supra). The three proceeded to a house far from the "Mcdonalds" (p. 13, supra) where Rocky slept "four times" (p. 14, supra). At about 5:30 p.m. of March 1, 1995, Luis Cebrero arrived home from work. When his son DJ arrived, he informed his father that Rocky did not attend school. Luis Cebrero asked Baria (pp. 4-5, tsn, August 22, 1995) who told him that Rocky was fetched at home by a woman to attend a birthday party (p. 5, supra). Informed thereof, Mr. Cebrero then called up his friends and went to the police station to report that his son was missing (p. 9, supra). At about 7:30 p.m. that night, Luis Cebrero received a telephone call from a woman saying, "Ibigay mo sa akin ang ATM card mo o ang bata" (p. 10, supra). Luis replied, "Kailangan ko ang bata". The woman asked how much money was in his ATM and Luis replied P40,000.00. Luis then requested to talk to his son but the woman said, "Hindi puwede, malayo dito ang anak mo at tatawag na lang uli ako" (p. 10, supra).

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Luis Cebrero decided to connect a tape recorder to his phone. On March 2, 1995, at about 7:20 p.m., his phone rang. The caller was a woman telling him, "Bigyan mo ako nang isang million", to which he replied, "Hindi ko kayang ibigay ang isang million". The caller told Luis that she will call back later on (pp. 11-12, supra). The Cebreros informed the authorities that two of their maids were hired from an agency, the General Services, Inc. at Paraaque. Major Ordoyo of the Intelligence Security Group, Philippine Army (PA) sent Sergeants Rempillo and Iglesias to the agency to verify this. The two were furnished by General Services, Inc. with the personal data of the maids named Elizabeth Castillo and Jasmine Nuez (pp. 13-14, tsn, March 12, 1996). When the caller did not contact Luis Cebrero the following day, March 3, 1995, he instructed his wife to raise some money. From the bank, Mrs. Cebrero withdrew P800,000.00 in P1,000.00 denomination. The bank provided Mrs. Cebrero a list containing the serial numbers of the money withdrawn (pp. 15-16, supra). On March 4, 1995, at about 9:30 p.m., Luis Cebrero received a telephone call. The caller was a woman who asked, "Ano nasa iyo na ba ang pera"? Luis answered, "Hindi ko kayang ibigay sa iyo ang halagang iyon, kalahati lang ang kaya kong ibigay". The caller said, "Sige, puede na yan (p. 17, supra) and instructed Luis Cebrero to be in Paco, Obando, Bulacan, alone, at about 2:00 a.m.; that at Paco, Obando, Bulacan, is a "Farmacia Dilag" and beside it is a street which Luis must follow until he reaches the church called "Sabadista" where he should drop the money (p. 18, supra). Luis Cebrero received another call on that same night instructing him to stop in front of the Farmacia Dilag and walk on the street beside it going to a chapel and to drop the money on the chapels terrace (p. 19, supra). Informed of the place for the pay-off, on March 4, 1995, Major Ronnie Eleazar, Commanding Officer of the Intelligence Security Group (ISG), Philippine Army, briefed his men on Rockys kidnapping and assigned them their respective tasks in the stakeout they will undertake around the pay-off area (pp. 6-7 tsn, January 30, 1996). At about 11:00 p.m. of March 4, 1995, Sgt. Alejandro Delena and his ISG team, proceeded to Obando, Bulacan for the stakeout. After positioning themselves near the stakeout site, a car arrived and stopped in front of the chapel. The man alighted and placed a bag in front of the chapel and immediately left (p. 10, supra). After about

forty (40) minutes, two women appeared, proceeded to where the bag was dropped. On seeing the bag, the women laughed and left. After about two (2) minutes, the two women returned, picked up the bag and immediately left (pp. 11-12, supra). The ISG team searched the area around the drop-off place but the two women were nowhere to be found (p. 17, supra). In court, Sgt. Delena pointed to and identified Castillo and Padayhag as the two women he saw in front of the chapel in Obando, Bulacan and who, later on, picked up the bag dropped by Luis Cebrero (p. 12, supra). Puzzled by the sudden disappearance of the two women, Sgt. Delena and his team remained at the stake-out area. The team befriended the residents of the place, one of whom was a certain Joselito Torres who claimed to be the former boyfriend of Elizabeth Castillo whom he recognized from the picture shown to him by Sgt. Delena. Torres informed the ISG team that Castillo had already left for Mindanao. Sgt. Delena immediately communicated the information, including the address of Gigi Padayhag in Navotas, to his commanding officer (p. 19, supra). At about 9:00 p.m. of March 5, 1995, Luis Cebrero was at home when a tricycle stopped in front of his house. Somebody knocked at the door and when Luis Cebrero opened it, he saw his son, Rocky (pp. 23-24, tsn, August 22, 1995). On March 12, 1995, an ISG team headed by Sgt. Manuel Iglesias was dispatched to Navotas to locate "Gigi" Padayhag at the address furnished by Sgt. Delena. The team found Padayhag who upon being apprised of the kidnapping of Rocky Cebrero, voluntarily went with the ISG team to Camp Crame to clear her name (p. 14, tsn, May 22, 1996). Upon the instruction of the ISG, Sgts. Delena and Demo were ordered to proceed to Dipolog City to look for Castillo (pp. 20-21, tsn, January 30, 1996). Sgt. Delena arrived in Dipolog City on March 13, 1996. He was briefed and shown the area where Castillo could be found (p. 23, supra). When Sgt. Demol arrived in Dipolog City, he and Sgt. Delena coordinated with the PNP stationed at Barangay Tulong, Rizal, Zamboanga del Norte (p. 41, tsn, March 12, 1996). Thereat, Sgt. Demol requested for the assistance of persons from Barangay Mitimos, where Castillo was believed to be hiding. The PNP

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assigned them two barangay officials of Mitimos who, when shown the picture of Castillo, said that the woman in the picture is in Barangay Mitimos (p. 46, supra). Upon the request of the police, the two barangay officials conducted a daily surveillance on Castillo. On March 18, 1995, Sgt. Demol reported to the ISG headquarters that Castillo was in Barangay Mitimos. In turn, Sgt. Demol was advised that ISG will be sending him, through JRS Express, copies of the list of serial numbers of the bills used as pay-off and a DOJ subpoena (p. 54, supra). Upon receipt of said documents, Sgt. Demol applied for a search warrant (p. 58, supra) which was granted by the Dipolog City Regional Trial Court on March 21, 1995 (p. 57, supra). The search warrant was shown to Elizabeth Castillo and her father who signed the same (pp. 60-61, supra). The search yielded a black bag placed in a carton inside the house (pp. 61-62) containing money in P1,000.00 bills in the total amount of P277,000.00 (p. 68, supra). The serial numbers of the recovered money bills appeared in the list furnished to Sgt. Demol by ISG (pp. 88-89, supra). Thereafter, the money was deposited with the Regional Trial Court at Dipolog City (p. 89, supra). Prosecuted for kidnapping and serious illegal detention, Evangeline Padayhag and Elizabeth Castillo initially pleaded guilty upon arraignment and were each meted the penalty of life imprisonment (p. 4, tsn, August 3, 1995). The trial court, however, on motion based on improvident plea, ordered the withdrawal of the plea of guilty and directed the re-arraignment of Castillo and Padayhag. After trial, Castillo and Padayhag were convicted of kidnapping and serious illegal detention as charged.4 Appellants maintain their innocence and present their own version of the events in their brief, as follows: 1. Accused ELIZABETH CASTILLO was a househelper at the Cebrero household from December 1993 to January 1995. She did the cleaning of the house, laundry of dirty clothes, and also took care of Rocky, son of Luis and Sandra Cebrero; 2. Accused Evangeline Padayhag, also a househelper, is a friend of Elizabeth Castillo. The two met sometime in 1994 at Paco, Ubando, Bulacan, when Padayhag worked in the household of Julito

Lawagon, the latter being the neighbor of Helen Lim, Elizabeth Castillos sister; 3. Upon assumption from work, Castillo was promised by Mrs. Sandra Cebrero a monthly salary of one thousand two hundred pesos (P1,200.00); 4. Castillo, however, was never given compensation during her entire employment in the Cebrero household; 5. Castillo was also not treated nicely by the Cebrero spouses. When something gets lost in the house, she was always the one being blamed, although the children were the ones getting the things. Besides, they say bad words against her. Thus, she has no other choice but to leave her work; 6. Castillo had been consistently demanding from the Cebrero spouses her unpaid wages for one year; but her demands remained unheeded; 7. Having reached only elementary education, Castillo believed that the only effective way for her to claim back her unpaid wages is to use Rocky, son of the Cebrero Spouses; 8. On 1 March 1995 Castillo called Padayhag, telling the latter that her boyfriend is sick. At that time, Padayhag was already working at Jelaya St., B.F. Homes, Paraaque under the employ of Lulu Sablan. Castillo fetched Padayhag. The two, however, did not go to see Padayhags boyfriend but instead they went to a playground; 9. Castillo then instructed Padayhag to fetch Rocky from his house at Cesar Virata St., B.F. Homes, Paraaque, Manila. When Padayhag asked why she wanted to see Rocky, Castillo answered that she missed the boy. Padayhag obliged to the request, knowing that the latter would not do any harm to the boy; 10. It was only the first time that Padayhag saw Rocky; 11. She brought the child to a market at B.F. Paraaque, where Castillo was waiting. The three went on a stroll. Thereafter, they went to the house of Imelda Wenceslao, Castillos sister, at Bagong

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Barrio, Caloocan City. Castillo noticed that Rocky had a fever, so she requested Vangie to buy a medicine; 12. Padayhag was not told by Castillo as to when the latter would return the boy. Padayhag did not sense anything wrong with what had happened as she believed that Castillo only took Rocky for a stroll; 13. Imelda Wenceslao asked why they brought a child along with them. Castillo answered that she just wanted to see the boy. Wenceslao then asked if they asked permission from the parents, and Castillo answered "no"; 14. At night, Castillo talked to Mr. Luis Cebrero over the phone to inform him that Rocky was with her. Mr. Cebrero told her not to harm the boy. No threat or demand for ransom was ever made by the accused to the Cebrero spouses. She never asked Mr. Cebrero how much money he had in the bank; 15. The following day, 2 March 1995, Castillo called Mr. Cebrero again to tell him that she could not yet return Rocky because he still had a slight fever. She also told Mr. Cebrero: "Hindi nyo ako sinusuwelduhan". He asked her: "Magkano ba ang kailangan mo?" She did not answer. Then Mr. Cebrero said: "May pera ako rito, kalahating milyon." At that moment, Castillo hanged-up the phone; 16. Castillo denied in her Sinumpaang Salaysay dated 25 August 1999, attached as Annex "A" and made an integral part hereof, that she demanded one million (P1,000,000.00) from the Cebrero spouses; 17. On the evening of 4 March 1995, when Castillo called Mr. Cebrero, he asked them where they were. The accused told him that they were in Paco, Ubando, Bulacan, near a Protestant Church. Mr. Cebrero then said: "Pupunta ako riyan bandang 2:00 ng madaling araw (March 5, 1999) na may bitbit na pera at ilalapag ko ito sa may simbahan"; 18. On 5 March 1995, at around 4:30 a.m. Castillo and Padayhag went out to buy "pandesal". They noticed that at a post near a Church, a dog was trying to pull a black plastic bag. They picked it up and brought it home. When they opened it, they found five bundles of money, in P1,000.00 denomination;

19. At about 9:00 p.m. of the same day, Mr. Cebrero heard a tricycle stop in front of their house. Someone knocked at the door, and when he opened the door, he saw Rocky; 20. On 11 March 1995, Capt. Raniel Ramiro, Intelligence Security Group of the Philippine Army, together with his men, after coordinating with Caloocan Police, arrested Evangeline Padayhag at her residence at Dagat-Dagatan, Caloocan City. The military men did not have a warrant of arrest at this particular operation; 21. The military were civilian-dressed. They pretended to be Padayhags cousins who came from abroad, and they "invited her to a birthday party". However, they brought her to Fort Bonifacio for interrogation. It was only then that Padayhag learned that her companions were military men; 22. At Fort Bonifacio, the police coerced Padayhag to confess to the crime, threatening her: "Pag hindi ka pa umamin, kami na mismo and bibitay sa iyo". Padayhag, however, did not confess to the commission of the crime. She was then brought to Camp Crame at Quezon City on that same date; 23. The following day, 12 March 1995, during the custodial investigation, a certain Major Meneses was exerting pressure on Padayhag to reveal where the P500,000.00 is. She told Major Meneses: "Wala akong pera na ganoon kalaki." He said to her: "Pag hindi ka umamin, papatayin na kita talaga!" Her answer was: "Patayin nyo man ako, hindi ako aamin dahil wala akong ganoong kalaking pera." Major Meneses then slapped Padayhag and hit her with a stool on her leg; 24. Major Meneses also threatened Padayhag that if she would not confess to the crime, he would submerge her on a drum. They forcibly brought her to a toilet room. She saw there two big drums. Major Meneses then told her: "Iyong mga hindi umamin, nilulublob namin dito sa drum". Padayhag shouted. Thereafter, someone knocked at the door and said: "Pakawalan nyo na iyan dahil marami nang tao". They brought her out of the room and handcuffed her; 25. SPO1 Larry Pablo was likewise threatening Padayhag: "Pag hindi ka pa umamin, ihuhulog na kita sa bintanang ito!" (They were on the third floor of a building) "Alam mo ba kung ilan na ang

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naihulog namin diyan? Panlabindalawa ka na sa ihuhulog namin diyan!"; 26. During the custodial investigation, Padayhag was not assisted by a counsel, nor has she waived her right to counsel. She was coerced by the police into signing an extrajudicial confession without even explaining to her the contents thereof; 27. Atty. Eranio Sedillo only arrived one hour (1 hr.) after Padayhag had already signed the questioned extrajudicial confession; 28. Elizabeth Castillo was arrested at Mitimos, Rizal, Zamboanga del Norte on or about 21 March 1995. Police officers came to her house, and when they informed her that they were looking for the money, she voluntarily gave it to them; 29. The approximate amount of money taken by Castillo was only twenty thousand (P20,000.00) She returned the rest of the money to the police who arrested, her; 30. Castillo vehemently denied in her Sinumpaang Salaysay (par. No. 14) that she returned only P227,000.00; 31. Castillo and her escorts were fetched in Manila by a van. Inside the van, they blindfolded her. They removed her blindfold when they reached Camp Crame; 32. Major Meneses and SPO1 Larry Pablo investigated her. She was slapped by Pablo, forcing her to admit where the money is; 33. During the investigation, Pablo poked a gun on her, then forced her to write what he would say to her. He instructed her to write: "Na kapag hindi ko isasauli ang lahat ng pera ay pwede nyo na akong patayin". Castillo followed the instructions because of fear. 5 In an 11-page Decision, of which nine pages were devoted to the recital of facts, the trial court found the testimonies of the prosecution witnesses more credible and gave no weight to Castillo and Padayhags defenses. The trial court convicted appellants on 17 December 1997 and imposed on them the death penalty, thus:

Originally, both accused pleaded guilty to the offense and were meted the penalty of life imprisonment. However, shortly thereafter, they moved to withdraw their plea claiming it was precipitate, which the court allowed and proceeded with a full-blown trial. Accused Elizabeth Castillo demanded money from Rockys parents for the release of the latter. She told his father to bring the money to Obando Bulacan. The Court can only imagine the pain, worry, fear and anxiety of the boys parents while their youngest son was under detention. Ransom is money, price or consideration demanded for the redemption of a captured person or persons, a payment that releases from captivity" (Corpus Juris Secundum 458). The testimony of Elizabeth Castillo that she did not know about the money cannot be given weight. Two hundred Seventy Seven Thousand (P277,000.00) Pesos was found among her things, the bills bearing the same serial number as the money paid to her. The court has taken a hard look in determining the liability of Evangeline Padayhag as it seems that her only participation in the crime was picking up the boy from his house. Although she did not get part of the ransom the fact is that she fully and directly cooperated and did her part to carry out the resolution of her coaccused. Under these facts there was conspiracy to extort ransom. People versus Kamad Akiran, 18 SCRA 239. The Court is convinced that the prosecution has established the guilt of the accused beyond reasonable doubt. WHEREFORE, ELIZABETH CASTILLO and EVANGELINE PADAYHAG are sentenced to suffer the supreme penalty of death. Further, they are hereby ordered to pay jointly and severally the sum of Five Hundred Thousand (P500,000.00) Pesos as moral damages and Five Hundred Thousand (P500,000.00) Pesos as exemplary damages plus costs of litigation. SO ORDERED.6 Appellants seek the reversal of their conviction by raising the following assignments of error:

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I THE TRIAL COURT ERRED IN MISAPPRECIATING (SIC) THE FACTS OF THE CASE. II THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS CONSPIRACY TO EXTORT RANSOM IN THIS CASE. III THE TRIAL COURT ERRED IN CONSIDERING THE UNCOUNSELLED CONFESSION OF EVANGELINE PADAYHAG. IV THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY IN THE CASE AT BAR.7 We affirm the trial courts judgment convicting Castillo. However, we acquit her co-accused Padayhag. To sustain a conviction for Kidnapping and Serious Illegal Detention under Article 267 of the Revised Penal Code,8 the prosecution must establish the following: (1) the offender is a private individual; (2) he kidnaps or detains another or in any other manner deprives the victim of his liberty; (3) the act of kidnapping or detention is illegal; and (4) in the commission of the offense any of the following circumstances is present: (a) the kidnapping or detention lasts for more than three days; (b) it is committed by simulating public authority; (c) serious physical injuries are inflicted on the victim or threats to kill are made; or (d) the person kidnapped or detained is a minor, female or a public officer.9 Appellant Castillos Liability Castillo asserts that the victims parents did not pay her wages when she worked as a maid of the victims family.10 She claims that it was this injustice, her educational level and her ignorance of the law, which impelled her to take Rocky. She faults the trial court for refusing to consider this. Castillo is mistaken. Whether or not her employer failed to pay her salary is irrelevant. No amount of perceived injustice can serve as justification for any person to

retaliate through the commission of another crime. The trial court was therefore correct in disregarding Castillos claim that Rockys parents committed injustice on her. Castillos claim of injustice cannot justify in any way her demand for ransom. Ransom is "money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity." 11 Thus, even if she had a right to demand payment of her unpaid wages, the money she actually demanded and eventually received, is still ransom. Castillos reliance on her low educational level is similarly unavailing. The penalty for kidnapping for ransom is the singular and indivisible penalty of death. This bars the application of any alternative, mitigating or aggravating circumstance.12 Mr. Cebrero admitted that he was unable to identify his son Rockys abductors. De Lena and Iglesias, the police officers who did the stake-out during the "pay-off," testified that the two women suddenly disappeared after retrieving the plastic bag containing the ransom. The police officers inability to explain how two simple maids managed to give 5 carloads of police officers the slip severely discredits their account of what happened that day. Rockys testimony, however, leaves no room for doubt. Only six years of age when he testified, Rocky was candid and direct in his recollection, narrating events as a young boy saw them happen, thus: COURT Alright. Rocky, when Vangie went to fetch you from your house. A Yes.

COURT You took a tricycle. A Yes.

COURT Where did you go?

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I do not know.

Q Malayo ba sa McDonald o malapit. Sinabi mo kanina, nagpunta kayo sa bahay nila? A Yes. Iyong bahay na pinuntahan ninyo, malayo sa McDonald? Malayo. Anong sinakyan ninyo? Hindi ko alam.

PROS. FONACIER Your Honor, please, may we request that the rule on evidence be not strict on this boy. The witness is of tender age. ATTY. SOLUREN There is no strict implementation as to what the Honorable Prosecutor stated. There is no strict implementation of the rules of court. In fact, we are very lenient but the fact is, the child said he does not know. But the question is he was giving the answer to this witness. COURT Ask another question. Q Rocky, nang sumakay kayo ni Vangie sa tricycle, nakita mo ba si Beth Castillo? A Nakita namin si Beth sa McDonalds. Malapit sa amin.

Q A Q A

Q Noong dumating kayo doon sa bahay na hindi ninyo, bahay, natulog ka ba doon? A Q A Q A Q A Q A Q Yes. Ilang beses ka natulog doon? 4 sleeps. Pinakakain ka ba sa bahay na pinuntahan ninyo? Yes. Ano ang pinakakain sa iyo? Champorado and fish. Sino ang nagpapakain sa iyo? Vangie. Sino si Vangie. Puede mo bang ituro sa amin?

Q Rocky, nakita ninyo si Beth. Ngayon, tatlo na kayo, ikaw, si Beth at si Vangie? A Yes.

Q Rocky, noong magkasama na kayong tatlo, saan kayo nagpunta? A Q A Q A Nasundo namin si Beth. Noong nasundo na ninyo si Beth, saan kayo nagpunta? Sa bahay nila. Kaninong bahay? Hindi ko alam.

PROS. FONACIER The witness is pointing to accused Evangeline Padayhag as the Vangie he was referring to.

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Q Doon sa 4 sleeps mo sa bahay na iyon, saan ka pa nila dinala? A Q Pinauwi na ako. Sinong kasama mo noong pinauwi ka?

She also testified that she had no permission from Rockys parents to take the child with her: T S Saan kayo nananghalian? Doon po sa bahay ng kapatid ko.

A Wala, pero mula sa McDonald, naiwan na ako sa tricycle hanggang sa bahay.13 Unshaken by rigorous cross-examination, Rockys testimony would have been more than enough to convict Castillo. The testimony of a single witness, if credible and positive, is sufficient to convict. 14 But there is more. The evidence on record amply supports the factual findings of the trial court. Both the evidence of the prosecution and the defense establish the commission of the crime. Castillo admitted she instructed Padayhag to fetch Rocky on 1 March 1995: Q And as a result of sitting at the palaruan, Miss witness, what happened next? A Q Pinasundo ko si Rocky kay Vangie, mam. And why did you ask Vangie to fetch Rocky, Miss witness?

T Noong dumating kayo doon, ano naman ang sinabi ng kapatid mo sayo? S T S Ang sabi niya, bakit daw may kasama kaming bata. Ano naman ang naging sagot mo kay Imelda? Sabi ko pinasyal lang po namin.

T Hindi tinanong ni Imelda kung bakit pinasyal nyo ang bata, kung may paalam yong bata doon sa kanyang magulang? S T S Tinanong po. Ano naman ang sinabi mo sa kanya? Sinabi ko gusto ko lang makita si Rocky.

A Kasi po naalala ko pagnamamalengke ako at kasama ko si Rocky, lagi po kaming pumupunta sa palaruan, mam Q A Q A Q A And then what happened next, Miss witness? Sinundo po ni Vangie si Rocky, mam. Whom did Vangie fetch, Miss witness? Si Rocky po, mam. And after Rocky fetched by Vangie, what happened next? Ipinasyal po namin si Rocky, mam.15 (Emphasis supplied)

T Pero, ano ang sinabi mo noong tinanong kung may paalam ang bata sa kanyang magulang, anong naging sagot mo sa katanungan niya? S T Ang sabi niya baka daw pagalitan kami. Ano naman ang naging sagot mo?

Your Honor, may we asked (sic) the witness to be more responsive with her answer. COURT What was the question, please? Stenographer:

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(Reading back the question) T Noong tinanong ni Imelda kung may paalam ang bata sa mga magulang, ano ang sagot mo? S T S Ang sabi ko po hindi, walang paalam. Ano ang naging reaction ng iyong kapatid na si Imelda? Bakit daw hindi nagpaalam.16 (Emphasis supplied)

And what else did he say, Miss witness?

A Sinabi po niya sa akin na huwag ko raw pong sasaktan si Rocky, mam. Q And then what else?

A Pinipilit po niya ako na kung magkano daw ang kailangan namin na pera, pagkatapos hindi ko na po sinagot ang tanong niya, mam. Q A And then what happened next? Binaba ko na po iyong telepono, mam.17 (Emphasis supplied)

Castillo testified that, during the period of Rockys detention she called Rockys father, Mr. Cebrero, to wit: Q A Q A Q What happened next Miss witness? Tinawagan ko po ang mga Cebrero. Who of the Cebreros did you call up? Si Luis Cebrero po, mam. What happened next after that?

The number and time of these calls coincided with the calls Mr. Cebrero received from Castillo telling him that she had Rocky and instructing him to pay the ransom for Rockys release. Additionally, Castillo by her own admission placed herself at the time and place where the "pay-off" occurred: T Sa pangatlong araw naman, nandoon ka pa rin ba at saka si Rocky? S T Opo. Sa bahay ni Imelda?

A Pagtawag ko po kay Mr. Luis Cebrero tinanong po niya sa akin kung nasaan si Rocky, mam. Q A Q A Q And what is your reply? Sinabi ko po na nandidito sa amin, mam. After that what happened next? Nagalit po si Luis Cebrero sa akin, mam. And what did you do when Luis Cebrero got angry?

S Nagpaalam po ako sa kapatid ko na maghahanap muna ako ng trabaho. T S T S Si Vangie, saan naman siya noon? Nandoon pa rin sa Dagat-dagatan po. Si Rocky naman? Andoon po sa bahay ng kapatid ko.

A Tinanong po niya ako kung magkano ang kailangan ko, mam.

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T Mga anong oras yon na nagpaalam ka na maghanap ng trabaho? S T S T S T S T S T Umaga po ako nagpaalam.

COURT What place is that? Witness may answer. T Anong detalyadong lugar? Sa may Julo po. Ano yong Julo? Malapit po iyan sa Obando

Kung ganoon umalis ka ng umagang yan? S Opo. T Saan ka naman pumunta? S Naghanap po ako ng trabaho. COURT Saan ka naghanap ng trabaho? Saang bayan ng Bulacan yon? Sa may bandang Bulacan po. S Sa may Paco Obando, doon ka ba pumunta? Hindi po. Saang parte ka ng Bulacan pumunta? Beyond a feeble excuse that she was in Obando in order to look for employment, Castillo provides no other plausible reason why her presence at that place, at such an opportune time should not be taken against her as additional evidence of her guilt. To attribute this to coincidence, as Castillo would probably have us do, taxes ones credulity. The same can be said of her inability to explain how the ransom money was found in her possession when she was caught by policemen in Dipolog. Castillo plainly contradicts herself on this point. In Castillos brief, she admitted going to the "pay-off" site on the day Mr. Cebrero was told to leave the ransom for Rockys release. Castillo admitted she found at the site a black plastic bag filled with money and brought it home. 19 However in her testimony before the trial court, she maintained that the first time she saw the same plastic bag was when it mysteriously appeared in her luggage when she went to Dipolog: Q And thereafter, Miss witness, what happened next? Hinanap ko iyong mga kagamitan ko po, mam. And for what purpose you looked at your things, Miss witness? Yon lang po ang alam ko.18 (Emphasis supplied)

S Malapit po sa may Hindi ko na po matandaan yong pinuntahan namin. T S T Malapit sa may? Papunta na po ng Obando, pero hindi nakarating doon. Saan ka pumunta doon para maghanap ka ng trabaho?

ATTY. SOLUREN Already answered, Your Honor, that the place papunta ng Obando pero hindi pa nakakarating sa Obando. STATE PROSECUTOR FONACIER That is why I am asking.

A Q

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A Para ayusin po iyong mga kagamitan ko para makapagpahinga na po ako, mam. Q What happened next, Miss witness?

A May nakuha ako na isang plastic bag sa loob ng aking bag, mam. Q A And what is this plastic bag about, Miss witness? May laman po na pera, mam.

treated him harshly.22 Where the victim in a kidnapping case is a minor, it becomes even more irrelevant whether the offender forcibly restrained the victim. Leaving a child in a place from which he did not know the way home, even if he had the freedom to roam around the place of detention, would still amount to deprivation of liberty. For under such a situation, the childs freedom remains at the mercy and control of the abductor. Next, Castillo explains that she called Mr. Cebrero not to ask for ransom but to tell him that Rocky was with her and unharmed. Castillo admitted that Mr. Cebrero pleaded with her not to harm Rocky. Castillo failed to explain, however, why she did not inform Mr. Cebrero of their exact whereabouts so that Mr. Cebrero could fetch Rocky. Her failure to inform Mr. Cebrero clearly shows she kept Rocky in detention considering she called Mr. Cebrero several times while she had physical control over Rocky. Castillos explanation that she decided to return Rocky only when he was no longer sick is also implausible. In the first place, she failed to explain why she did not return the child the moment she found out he was sick. That would have been the more prudent course of action at that time. However, one day after the "pay-off" on 4 March 1995, Rocky suddenly appeared by himself at the Cebreros home on 5 March 1995. Any reasonable person would conclude that the pay-off and the return of the child were related events. Castillo would have us attribute this to coincidence. Castillo would also have us believe that what prompted her sudden departure for Dipolog, where she was eventually captured, was her inability to find employment in Manila. And yet Castillo does not explain why she tried to bring Padayhag along with her to Dipolog. Finally, Castillo points out that the prosecution coached Rockys testimony. True, Rocky admitted he did not know the contents of the document he signed in front of the fiscal.23 Rocky also stated that he was told to testify that Padayhag forced him to go with her, and finally, that he must accuse both appellants as his abductors.24 These admissions, damaging as they may sound, are of little use to appellants. The reason is simple. The facts to which Rockys testimony pertains to are the very same facts Castillo herself admitted on the witness stand. Even if we were to discredit Rockys testimony entirely, the facts of his kidnapping stand proven by no less than Castillos own admission on the witness stand and in her brief. With the evidence Castillos own testimony established, the prosecutions witnesses did little more than corroborate what Castillo herself had admitted. Since Castillo admitted in open court that she instructed Padayhag to fetch

Q And how much money was there in that plastic bag, Miss witness? A Q A Q Hindi ko po alam. And what did you observe about the money in the plastic bag? Nagulat po ako, mam. And why were you surprised?

A Hindi ko po kasi lubos na maisip na ang bag na aking dala dala ay may laman na isang malaking halaga na pera, mam. Q And what did you do after learning that there was money inside your bag, Miss witness? A Pinabayaan ko na lang po at inaantay na may kumuha na lang po niyon sa akin mam.20 (Emphasis supplied) Castillo insists that she took Rocky simply because she missed him, and wanted to spend time with him. At the same time, in her brief Castillo claims that what spurred her to take Rocky was her desire to get her unpaid wages from the Cebreros.21 Castillo also points out that Rocky came along freely with them, was not harmed, and was even cared for during his detention. This argument is pointless. The essence of kidnapping is deprivation of liberty. For kidnapping to exist, it is not necessary that the offender kept the victim in an enclosure or

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Rocky even without the parents permission, we find her explanations futile. Her allegations of torture and of signing a sworn statement without counsel are useless. After claiming to have been tortured into making her sworn statement, logic would have it that Castillo should have debunked the contents of that statement through her testimony. Instead, she freely and voluntarily recounted events as she narrated them in her sworn statement. Moreover, there is no allegation that the trial court decided her guilt based on her sworn statement. The trial court based its decision on the testimonies of all the witnesses, including Castillos. In sum, the prosecution has established beyond reasonable doubt Castillos guilt. Appellant Padayhags Liability The same cannot be said of Padayhag. Our review of the evidence on record shows that the prosecution failed to prove Padayhags guilt beyond reasonable doubt. We reiterate the doctrine that an appeal in a criminal case opens the entire case for review on any question including those not raised by the parties. 25 This becomes even more imperative in cases where the penalty imposed is death. Padayhags sole involvement in this entire episode is her act of fetching Rocky and bringing him to where Castillo was waiting for them. Padayhag then went strolling with the two, went to the house of Castillos sister together with Castillo and Rocky, and then later left the house. From this fact alone, the prosecution would have us rule that Padayhag acted in conspiracy with Castillo. The prosecution contends that without Padayhags help, Castillo could not have abducted Rocky. We are not persuaded. There must be positive and conclusive evidence that Padayhag acted in concert with Castillo to commit the same criminal act. To hold an accused guilty as a co-principal by conspiracy, there must be a sufficient and unbroken chain of events that directly and definitely links the accused to the commission of the crime without any space for baseless suppositions or frenzied theories to filter through.26 Indeed, conspiracy must be proven as clearly as the commission of the crime itself.27

Conspiracy is established by the presence of two factors: (1) singularity of intent; and (2) unity in execution of an unlawful objective. The two must concur. Performance of an act that contributes to the goal of another is not enough. The act must be motivated by the same unlawful intent. Neither joint nor simultaneous action is per se sufficient indicium of conspiracy, unless proved to have been motivated by a common design. 28 Padayhags act of fetching Rocky is not conclusive proof of her complicity with Castillos plan, a plan Padayhag did not even know. Both appellants testified that Padayhag met Castillo only because Castillo told Padayhag that Padayhags boyfriend was sick. It was precisely on the pretext that they were to visit Padayhags boyfriend that the two met. When they met, Padayhag realized that Castillo had deceived her: Q Why? (sic) Elizabeth Castillo fetched you on February 28, 1995 and why did you decide to leave your employment? A sir. Q A Kasi sabi po niya sa akin ang boyfriend ko raw ay maysakit,

And could you tell us who is that boyfriend of yours? Si Jessie Mercader po, sir.

Q And what is the address of Jessie Mercader, at that time, February 28, 1995? A Q Sa Caloocan City po, sir. And you said he was sick. What was his sickness?

ATTY. SOLUREN Your Honor, that is misleading. COURT Reform your question. Q Madam witness, you said that you were informed that your boyfriend was sick. Did you go and see your boyfriend?

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A Sumama po ako kay Elizabeth Castillo pero hindi na po kami natuloy pumunta doon, sir. Q A For what reason you did not go?

Wala na po siyang sinabi sa akin, Your Honor.

COURT Hindi ka ba nakahalata na may mali doon sa pangyayaring iyon? Hindi po sinabi sa akin ni Elizabeth Castillo, sir. A Ang pagkakaalam ko po ay ipapasyal lamang niya ang bata, Your Honor. Q A Hindi na po sir. A Q Are we made to understand, madam witness, when you left your employer on 28 February 1995 for the reason that your boyfriend was sick, you did not actually go and see your boyfriend? A Opo, sir.29 Opo, Your Honor. Sa Caloocan?

Q So, you did not come to find out what was the sickness of your boyfriend?

COURT Tapos umalis ka na pagkatapos ninyong kumain doon ng kapatid niya? A Opo, Your Honor.

After the two spent the day together, Castillo beseeched Padayhag to fetch Rocky citing as reason her love for the child and a desire to spend time with the boy. Padayhag is a young lass from the province who only finished Grade Two. Padayhag was thus easily misled by the more worldly Castillo. Padayhags testimony reveals her naivet: COURT Q Ano ang sinabi sa iyo bakit mo susunduin ang bata?

COURT Ipinasyal ba niya ang bata? A Hindi ko na po alam kasi umalis nga po pagkatapos namin kumain, Your Honor. COURT Kailan niya sinabi sa iyo na ibabalik ang bata? A Wala po siyang sinabi kung kailan, Your Honor.

A Namimiss na raw po niya iyong bata at nais niyang makita, Your Honor. COURT Tapos ikaw ang pinasundo niya doon sa bata? A Opo, Your Honor.

COURT Ganoon ba ang alam mo sa pamamasyal? A Siya naman po ang nagyaya, Your Honor.30

COURT Tapos noon dalhin sa Caloocan, ano pa, sinabi pa rin niya namimiss niya ang bata ganoon uli ang sinabi niya sa iyo?

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Her ignorance and susceptibility to confusion becomes more evident in the following exchange: COURT

COURT Kailan kayo nagkita nitong si Elizabeth Castillo? A Noong January lang po, Your Honor.

Kailan ka ba umalis kay Mr. Julito Luwagon? COURT A Hindi ko pa matandaan, Your Honor. Saan kayo nagkita? COURT Pero sabi mo kanina ay pitong buwan ka doon? A Opo pitong buwan ako roon pero hindi ko po matandaan kung anong buwan, Your Honor. ATTY. SOLUREN A She only finished Grade II, Your Honor. COURT COURT Pero alam mo ang mga buwan, Enero, Pebrero.. alam mo iyon? Yes I know it but she would know that she works for seven (7) months. Alam mo ba na December 1994 ka nagsimula mangamuhan kay Julito Luwagon? A Opo, Your Honor. A Opo, Your Honor. Hindi ko po alam, Your Honor. A Pinaalis niya po ako doon sa pinagtratrabahuan ko sa may Dagat Dagatan, Your Honor. COURT Alam mo ba kung ilang buwan mayroon ang isang taon?

COURT Sige nga sabihin mo nga sa akin kung anu-ano ang mga buwan? A Enero, Pebrero, Marso, Abril, Mayo, Hunyo, Hulyo, Agosto, Setyembre, Oktubre, Nobyembre at Disyembre po, Your Honor. 31 Padayhags confusion in the way she answered the questions propounded to her only highlights the fact that she was not aware of Castillos plans and was vulnerable to the latters manipulation. Her straightforward and wideeyed admission of facts that incriminate her demonstrate a level of honesty that can only be found in those who do not know the art of deceit. Far from a cold and calculating mind, Padayhag strikes us as one whose innocence often leaves her at the mercy of her more worldly peers. It is clear that she acted with the full belief that Castillo was doing nothing wrong. Whatever moved her to do what Castillo asked of her is up for speculation. What

COURT Enero, Pebrero, Marso, Abril, Mayo, Hunyo at Hulyo tama ba iyon? A Opo, Your Honor.

COURT Papaano nangyari noong Enero 1995 ikaw ay nagtratrabaho na kay Lulu Sablan? A Itinuro po sa akin ni Elizabeth Castillo na mag-apply ng trabaho sa may BF Homes, Your Honor.

CRIMES AGAINST PERSONAL LIBERTY AND SECURITY | 40

matters is that her motivation in fetching Rocky was not to kidnap the boy. To impose criminal liability, the law requires that there be intentional participation in the criminal act,32 not the unwitting cooperation of a deceived individual. In its brief the prosecution itself cites that any inquiry as to the liability of an individual as a conspirator should focus on all acts before, during and after the commission of the crime.33 We have done precisely that, and it is precisely why we rule for her innocence. After her stroll with Castillo and Rocky, she left when Castillo brought the boy to her sisters house in Caloocan.34 She never visited nor contacted Castillo afterwards. She remained at her house and refused to go with Castillo when the latter suddenly tried to coax her to go to Dipolog. None of the money used as ransom was found in her possession. Her involvement in the "pay-off" was never established. The testimony of two prosecution witnesses, Sgt. De Lena and Sgt. Iglesias, claiming that Padayhag was with Castillo when the latter picked up the ransom in Obando, is contradicted by Castillos admission in open court that she brought along a certain "Mila" and not Padayhag. 35 In addition, the testimonies of these two police officers suffer from their failure to explain how they suddenly lost track of the two women who took the ransom in front of their very eyes. All these circumstances illustrate the absence of any hint of conspiracy. We also find that the prosecution failed to prove Padayhags guilt beyond reasonable doubt. In People v. Gonzales36 we held: In the absence of conspiracy, if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. Every person accused has the right to be presumed innocent until the contrary is proven beyond reasonable doubt. The presumption of innocence stands as a fundamental principle of both constitutional and criminal law. 37 Thus, the prosecution has the burden of proving every single fact establishing guilt.38 Every vestige of doubt having a rational basis must be removed.39 The defense of the accused, even if weak, is no reason to convict.40 Within this framework, the prosecution must prove its case beyond any hint of uncertainty. The defense need not even speak at all. The presumption of innocence is more than sufficient.

The failure to prove Padayhags involvement as a conspirator reveals how tenuous the evidence is linking her to the crime. Padayhags culpability hinges on how her act of fetching Rocky and bringing him to Castillo formed part of a concerted effort to kidnap the child. The act of fetching the boy, by itself, does not constitute a criminal offense. By itself, it is not even sufficient to make her an accomplice. For a person to be considered an accomplice there must be a community of design, that is, knowing the criminal design of the principal, the co-accused concurs with the latter. Mere commission of an act which aids the perpetrator is not enough. As we explained in People v. Cual:41 The cooperation that the law punishes is the assistance knowingly rendered, which cannot exist without the previous cognizance of the criminal act intended to be executed. It is therefore required in order to be liable as an accomplice, that the accused must unite with the criminal design of the principal by direct participation. There was therefore a need for clear and convincing proof that this single act was committed to kidnap the child. The prosecution failed to prove this. Padayhag explained that Castillo coaxed her into fetching Rocky through another deception and by playing on her feelings of sympathy and friendship. Castillo corroborated this on the witness stand. The prosecution failed to prove otherwise. The facts as established show that the only thing Castillo told Padayhag was to fetch Rocky because Castillo missed her former ward. Upon reaching the house of the Cebreros, the boys nanny handed over to Padayhag the child. There is no allegation or evidence that Padayhag knew the criminal plan of Castillo. Neither is there any hint that Castillo told Padayhag to abduct the boy, or to misrepresent herself or use means that would have led Padayhag to suspect that Castillo had some criminal design. Nor was there any proof that Padayhag knew that Castillo had no permission from the boys parents. The appearance of the boy itself, newly bathed and dressed for a stroll, would have led Padayhag to believe whatever story Castillo contrived to ask her in fetching the boy. A criminal conviction must stand on the strength of the evidence presented by the prosecution, and not on the weakness of the defense of the accused. The prosecution should have done more to establish Padayhags guilt. Instead, the prosecution left a lot of room for other possible scenarios besides her guilt. This is a fatal error. The presumption of innocence imposes a rule of evidence, a degree of proof that demands no less than total compliance. As we explained in United States v. Reyes:42

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The presumption of innocence can be overborne only by proof of guilt beyond reasonable doubt, which means proof, to the satisfaction of the court and keeping in mind the presumption of innocence, as precludes every reasonable hypothesis except that which it is given to support. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely true than the contrary. It must establish the truth of the fact to a reasonable and moral certainty- a certainty that convinces and satisfies the reason and conscience of those who are to act upon it. (Emphasis supplied) On the other hand, we find Padayhags explanation sufficiently supported by circumstances aside from Castillos testimony. Padayhags acts before, during and after the crime all point to the conclusion that she was no more than an unwitting tool of Castillo. Castillo misled her into a meeting. Castillo again misled her into fetching Rocky. Castillo never met or contacted her after the day of Rockys abduction. Castillo also testified that she did not bring Padayhag along with her when she went to Obando on the day that coincided with the "pay-off." The only circumstance linking Padayhag to that event is the shaky account of two police officers who admitted that their quarry inexplicably disappeared before their very eyes. Even the presumption of regularity in the performance of official duty, by itself, cannot prevail over the constitutional presumption of innocence. 43 Nothing links Padayhag to the demand for ransom. She never received any part of the ransom, precisely because she did not even know it existed. Penalty and Damages Under Article 267 of the Revised Penal Code, the penalty of death is imposed upon proof that the kidnapping was committed to extort ransom from the victim or any other person. We find that the prosecution has established Castillos guilt for this crime beyond reasonable doubt. However, Castillos pecuniary liability must be modified to conform with jurisprudence. The award of exemplary damages must be deleted in the absence of any aggravating circumstance. Mr. Cebrero testified that their family suffered serious anxiety at the possibility of not seeing Rocky again. 45 The pain and anguish they experienced justifies the award of moral damages. However, we reduce the trial courts award of moral damages to P100,000 in line with current jurisprudence.46 WHEREFORE, the Decision of the Regional Trial Court of Paraaque, Branch 260, National Capital Judicial Region, in Criminal Case No. 95-86 convicting appellant Elizabeth Castillo is AFFIRMED with MODIFICATION.
44

Appellant Elizabeth Castillo is sentenced to suffer the penalty of DEATH and to pay the victim P100,000 as moral damages. The award for exemplary damages is deleted for lack of legal basis. The trial courts Decision convicting appellant Evangeline Padayhag is REVERSED. We ACQUIT Evangeline Padayhag and order her immediate RELEASE from confinement unless held for another lawful cause. The Director of the Bureau of Corrections is ordered to report to the Court, within five days from notice, compliance with this Decision. In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, upon finality of this decision, let certified true copies of the records of this case be forwarded to the President of the Philippines for the possible exercise of the pardoning power. SO ORDERED. Davide, Jr., C.J., Vitug, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Puno, J., on leave. Panganiban, J., on official leave.

G.R. No. 133489 & G.R. No. 143970

January 15, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONALD a.k.a "ROLAND" GARCIA y FLORES,* RODANTE ROGEL y ROSALES, ROTCHEL LARIBA y DEMICILLO, and GERRY B. VALLER, accused-appellants. PER CURIAM: In Crim. Case No. Q-96-68049 accused-appellants Ronald a.k.a Roland Garcia y Flores, Rodante Rogel y Rosales, Rotchel Lariba y Demicillo and Gerry B. Valler, along with a certain Jimmy Muit, were charged with and convicted of kidnapping for ransom and were sentenced each to death, except aforementioned Jimmy Muit who has remained at large, for obvious

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reasons, and to indemnify their victim Romualdo Tioleco P200,000.00 and to pay the costs.1 In a related case, Crim. Case No. Q-96-68050, which was decided jointly with Crim. Case No. Q-96-68049, accused-appellants Rotchel Lariba and Rodante Rogel were also found guilty of illegal possession of firearms and ammunition and each sentenced to an indeterminate prison term of four (4) years, nine (9) months and eleven (11) days of prision correccional as minimum, to eight (8) years, eight (8) months and one (1) day of prision mayor as maximum, and to pay a fine of P30,000.00 plus the costs. 2 No notice of appeal3 was filed in this criminal case; nonetheless, for reasons herein below stated, we take cognizance of the case. Atty. Romualdo Tioleco was jogging alone at Gilmore Avenue, New Manila, Quezon City, at about 5:30 o'clock in the morning of 5 October 1996. 4 He was heading towards 4th Avenue when he noticed a blue car parked at the corner of this street.5 As he was about to cross 4th Avenue, the car lurched towards him and stopped.6 Two (2) men quickly alighted from the car.7 One of them pointed a gun at Atty. Tioleco while the other hit his back and pushed him into the back seat of the car.8 Once inside, he saw two (2) other men, one on the driver's seat and the other on the back seat directly behind the driver.9 He found out later the identities of the driver whom he undoubtedly recognized during the abduction to be accused-appellant Gerry Valler, and of the other person on the passenger seat behind Valler as accused-appellant Roland "Ronald" Garcia.10 He described the man who disembarked from the car and who pushed him inside to be 5'5" or 5'6" in height, medium built, and the other, who threatened him with a gun, at 5'4" or 5'5" in height, dark complexioned and medium built although heftier than the other. 11 These two (2) persons have since the commission of the crime have remained at large. While inside the car Atty. Tioleco was made to crouch on the leg room. 12 As it sped towards a destination then unknown to the victim, the men on board feigned to be military men and pestered him with the accusation of being a drug pusher and the threat of detention at Camp Crame. 13 As they were psyching him down, "they started putting blindfold on [him] and packaging tape on [his]face and handcuffed [him] on the back of [his] body." 14 His eyeglasses were taken off "when they were putting blindfold on [him] x x x." 15 Then they divested him of his other personal belongings, e.g., his keys, wristwatch, etc.16 The car cruised for thirty (30) to forty-five (45) minutes. 17 When it finally stopped, Atty. Tioleco was told to alight, led to a house and then into a room.18 He remained blindfolded and handcuffed throughout his ordeal and

made to lie down on a wooden bed.19 During his captivity, one of the kidnappers approached him and told him that he would be released for a ransom of P2 million20 although the victim bargained for an amount between P50,000.00 and P100,000.00 which according to him was all he could afford. While still under detention, one of his abductors told him that they had mistaken him for a Chinese national and promised his release without ransom.21 But he was just being taken for a ride since the kidnappers had already begun contacting his sister Floriana Tioleco. Floriana was at her office when her mother called up about her brother's kidnapping.22 Floriana hurried home to receive a phone call from a person who introduced himself as "Larry Villanueva" demanding P3 million for Atty. Tioleco's ransom.23 Several other calls to Floriana were made during the day and in one of those calls the ransom was reduced to P2 million. 24 Around 7:00 o'clock in the evening of the same day, 5 October 1996, P/Sr. Insp. Ronaldo Mendoza of the Presidential Anti-Crime Commission (PACC) arrived at Floriana's house to monitor her brother's kidnapping upon the request of her friends.25 Floriana received the following day about eight (8) phone calls from the kidnappers still demanding P2 million for her brother's safe release.26 By the end of the day on 7 October 1996 Floriana was able to raise only P71,000.00,27 which she relayed to the kidnappers when they called her up. 28 They finally agreed to set her brother free upon payment of this amount, which was short of the original demand.29 The pay-off was scheduled that same day at around 8:00 o'clock in the evening at Timog Avenue corner Scout Tuazon in Quezon City near the "Lighthaus" and "Burger Machine." 30 Upon instruction of P/Sr. Insp. Mendoza, Floriana together with only two (2) female friends proceeded to this meeting place. 31 They reached there at 8:40 o'clock in the evening and waited for the kidnappers until about 10:30 or 11:00 o' clock that evening.32 Meanwhile, P/Sr. Insp. Mendoza relayed the information about the pay-off and other relevant facts to P/Chief Insp. Gilberto Cruz at the PACC headquarters.33 With the information from P/Sr. Insp. Mendoza, P/Chief Insp. Cruz, together with P/Chief Insps. Winnie Quidato and Paul Tucay with P/Sr. Insp. Nilo Pagtalunan, immediately went to Timog Avenue corner scout Tuazon near the "Lighthaus" and "Burger Machine" in Quezon City. 34 They surveyed this site and saw a blue Toyota Corona with three (3) persons on board suspiciously stopping about five (5) meters from Floriana and her friends and remaining there for almost two (2) hours. 35

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Floriana and her friends left the "pay-off site" after waiting for two (2) hours more or less;36 so did the blue Toyota Corona almost simultaneously. 37 No payment of ransom took place.38 P/Chief Insp. Cruz then ordered P/Chief Insps. Quidato and Tucay and their subordinates to tail this car which they did all the way to the De Vega Compound at Dahlia Street in Fairview, Quezon City.39 This compound consisted of one bungalow house and was enclosed by a concrete wall and a steel gate for ingress and egress. 40 They posted themselves thirty (30) to forty (40) meters from the compound to reconnoiter the place.41 Meanwhile, the kidnappers explained in a phone call to Floriana that they had aborted the pay-off on account of their belief that her two (2) companions at the meeting place were police officers. 42 But she assured them that her escorts were just her friends. 43 At around 1:00 o'clock in the afternoon of 8 October 1996 Floriana received a call from the kidnappers at her house44 who wanted to set another schedule for the payment of the ransom money an hour later or at 2:00 o'clock. 45 This time the rendezvous would be in front of McDonald's fastfood at Magsaysay Boulevard in Sta. Mesa, Manila.46 She was told by the kidnappers that a man would go near her and whisper "Romy" to whom she would then hand over the ransom money. Floriana agreed to the proposal. With her two (2) friends, she rushed to the place and brought with her the P71,000.00. 47 About this time, the same blue Toyota Corona seen at the first pay-off point left the De Vega Compound in Fairview.48 A team of PACC operatives under P/Chief Insp. Cruz again stationed themselves in the vicinity of McDonald's. 49 Floriana arrived at the McDonald's restaurant and waited for a few minutes. 50 Not long after, the blue Toyota Corona was spotted patrolling the area. 51 The blue car stopped and, after dropping off a man, immediately left the place. The man approached Floriana and whispered "Romy" to her. 52 She handed the money to him who took it.53 Floriana identified this man during the trial as accused-appellant Roland (Ronald) Garcia.54 The PACC operatives tried to follow the blue car but were prevented by traffic.55 They were however able to catch up and arrest Garcia who was in possession of the ransom money in the amount of P71,000.00. 56 They brought him inside their police car and there apprised him of his custodial rights.57 Garcia informed the PACC operatives that Atty. Tioleco was being detained inside the De Vega compound in Fairview.58 With this information, P/Chief Insp. Cruz ordered P/Chief Insps. Tucay and Quidato who had been posted near the compound to rescue the victim.59 The two (2) PACC officers, together with their respective teams, entered the compound and surged into the bungalow house where they saw two (2) men

inside the living room.60 As one of the PACC teams was about to arrest the two (2) men, the latter ran towards a room in the house where they were about to grab a .38 cal. revolver without serial number loaded with six (6) rounds of ammunitions and a .357 cal. revolver with six (6) live ammunitions.61 The other PACC team searched the house for Atty. Tioleco and found him in the other room.62 The two (2) men were arrested and informed of their custodial rights. They were identified in due time as accused-appellants Rodante Rogel and Rotchel Lariba. 63 P/Chief Insp. Cruz arrived at the De Vega compound 64 and coordinated with the proper barangay authorities.65 While the PACC operatives were completing their rescue and arrest operations, the house phone rang. 66 Accused-appellant Rogel answered the call upon the instruction of P/Chief Insp. Cruz.67 Rogel identified the caller to be accused-appellant Valler who was then driving towards the De Vega compound.68 In the same phone call, Valler also talked with accused-appellant Garcia to inquire about the ransom money.69 Then a blue Toyota Corona arrived at the De Vega compound. 70 Valler alighted from the car and shouted at the occupants of the house to open the gate.71 Suspicious this time, however, he went back to his car to flee. 72 But the PACC operatives pursued his car, eventually subduing and arresting him.73 The operations at the De Vega Compound ended at 8:30 in the evening and the PACC operatives, together with Atty. Tioleco and the accused-appellants, left the De Vega compound and returned to their headquarters in Camp Crame, Quezon City.74 The ransom money was returned intact to Atty. Tioleco.75 When arraigned, accused-appellants Ronald "Roland" Garcia, Rodante Rogel, Rotchel Lariba and Gerry Valler pleaded not guilty to the charge of kidnapping for ransom in Crim. Case No. Q-96-68049, although during the trial Garcia admitted complicity in the abduction of Atty. Tioleco and in the receipt of the ransom money from the victim's sister Floriana. 76 In Crim. Case No. Q-96-68050 for illegal possession of firearms and ammunition, Rodante Rogel and Rotchel Lariba also pleaded not guilty.77 During the trial, Gerry Valler denied being part of the kidnapping for ransom and asserted that he was at the De Vega compound where he was arrested on 8 October 1996 solely to pay for the fighting cocks he had bought from one Jimmy Muit, alleged owner of the compound.78 Accused Ronald Garcia, despite his admission to the crime, nevertheless disowned any role in planning the crime or knowing the other accused-appellants since his cohorts were allegedly Jimmy Muit and two (2) others known to him only as "Tisoy"

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and "Tony."79 He also alleged that it was Jimmy Muit's red Toyota car that was used in the crime.80 Explaining their presence at the De Vega compound at the time they were arrested, Rogel claimed that he was employed as a helper for breeding cocks in this compound81 while Lariba's defense focused on an alleged prior agreement for him to repair Jimmy Muit's car. 82 Accused-appellants filed separate appellants' briefs. In the brief submitted by the Public Attorneys Office in behalf of accused-appellants Garcia, Rogel and Lariba, they argue that the crime of kidnapping for ransom was not committed since Atty. Tioleco was released from detention by means of the rescue operation conducted by the PACC operatives and the ransom money subsequently recovered.83 They conclude that their criminal liability should only be for slight illegal detention under Art. 268, of The Revised Penal Code. Accused-appellants Rogel and Lariba further assert that they could not be held guilty of illegal possession of firearms and ammunition since neither was in complete control of the firearms and ammunition that were recovered when they were arrested and no evidence was offered to prove responsibility for the presence of firearms and ammunition inside the room. 84 The brief filed for accused-appellant Gerry B. Valler asserts the same defense he made at the trial that he was at the De Vega compound only to pay his debts to Jimmy Muit,85 arguing that Atty. Tioleco did not have the opportunity to really recognize him so that his identification as the driver of the car was tainted by police suggestion, and that P/Chief Insp. Cruz' testimony is allegedly replete with inconsistencies that negate his credibility. 86 Encapsulated, the issues herein focun on (a) the "ransom" as element of the crime under Art. 267 of The Revised Penal Code, as amended; (b) the sufficiency of the prosecution evidence to prove kidnapping for ransom; (c) the degree of responsibility of each accused-appellant for kidnapping for ransom; and, (d) the liability for illegal possession of firearms and ammunition under RA 8294, amending PD 1866. First. We do not find any quantum of merit in the contention that kidnapping for ransom is committed only when the victim is released as a result of the payment of ransom. In People v. Salimbago87 we ruled No specific form of ransom is required to consummate the felony of kidnapping for ransom so long as it was intended as a bargaining chip in exchange for the victim's freedom. In municipal criminal law, ransom refers to the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. Neither actual demand for nor

actual payment of ransom is necessary for the crime to be committed. It is enough if the crime was committed "for the purpose of extorting ransom." Considering therefore, that the kidnapping was committed for such purpose, it is not necessary that one or any of the four circumstances be present. So the gist of the crime, as aptly stated in American jurisprudence from which was derived the crime of kidnapping for ransom,88 is "not the forcible or secret confinement, imprisonment, inveiglement, or kidnapping without lawful authority, but x x x the felonious act of so doing with intent to hold for a ransom the person so kidnapped, confined, imprisoned, inveigled, etc." 89 It is obvious that once that intent is present, as in the case at bar, kidnapping for ransom is already committed. Any other interpretation of the role of ransom, particularly the one advanced by accused-appellants, is certainly absurd since it ironically penalizes rescue efforts of kidnap victims by law enforcers and in turn rewards kidnappers for the success of police efforts in such rescue operations. Moreover, our jurisprudence is replete with cases, e.g., People v. Chua Huy,90 People v. Ocampo91 and People v. Pingol,92 wherein botched ransom payments and effective recovery of the victim did not deter us from finding culpability for kidnapping for ransom. 1wphi1.nt Second. Issues of sufficiency of evidence are resolved by reference to findings of the trial court that are entitled to the highest respect on appeal in the absence of any clear and overwhelming showing that the trial court neglected, misunderstood or misapplied some facts or circumstances of weight and substance affecting the result of the case. 93 Bearing this elementary principle in mind, we find enough evidence to prove beyond reasonable doubt the cooperation of all accused-appellants in the kidnapping for ransom of Atty. Tioleco. Truly incriminating is the judicial confession of accused-appellant Garcia of his participation in the commission of the crime. He admitted that he took part in actually depriving Atty. Tioleco of his liberty94 and in securing the ransom payment from Floriana Tioleco.95 He could not have been following mechanically the orders of an alleged mastermind, as he claims, since by his own admission he was neither threatened, forced or intimidated to do so 96 nor mentally impaired to resist the orders.97 In the absence of evidence to the contrary, he is presumed to be in full possession of his faculties and conscience to resist and not to do evil.

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We cannot also give credence to Garcia's asseveration that the persons still at large were his co-conspirators. This posture is a crude attempt to muddle the case as discerned by the trial court from his demeanor when he testified Because he had been caught in flagrante delicto, Roland Garcia admitted his participation in the crime charged. From his testimony, however, there appears a veiled attempt to shield Gerry Valler from conviction. First, Garcia claimed that the car they used was reddish in color (TSN, October 20, 1997, pp. 9, 19 & 20). Then he added that the owner of the car was Jimmy Muit and not Gerry Valler (TSN, October 20, 1997, p. 9). Next, he said that there was no conspiracy and he did not know then Gerry Valler, Rodante Rogel and Rogel Lariba until they were placed together in Camp Crame (Ibid., p. 22). The Court however cannot simply accept this part of his story. To begin with, his repeated reference to the color of the car as reddish is quite suspicious. He conspicuously stressed the color of the car in three (3) instances without being asked. The transcripts of the notes bear out the following: ATTY. MALLABO: Did you use any vehicle while you were there at Gilmore Street? A: Q: A: Yes, sir. What kind of vehicle was that? Jimmy's car, a Toyota, somewhat reddish in color x x x x

Corona (TSN, March 17, 1997, pp. 28-32). As earlier pointed out, the blue Toyota Corona car is owned by Gerry Valler who was the one driving it in the afternoon of the same day to the De Vega compound (TSN, April 28, 1997, pp. 64-67; and November 10, 1997, pp. 22-28). Gerry Valler was also identified by Atty. Tioleco as the driver of the dark blue car used in his abduction (TSN, April 10, 1997, pp. 10-11; and TSN, April 14, 1997, pp. 21-27).98 Accused-appellant Valler's profession of innocence also deserves no consideration. Various circumstances indubitably link him to the crime. For one, he was positively identified by Atty. Tioleco to be the driver of the dark blue Toyota car used in the abduction on 5 October 1997, which car was seen again twice during the occasions for ransom payment. This was followed by a telephone call made by Valler to the house where Atty. Tioleco was being detained and in fact talked with accused-appellant Rogel to tell him that he was coming over99 and with accused-appellant Garcia to ask from him about the ransom supposedly earlier collected. 100 Given the overwhelming picture of his complicity in the crime, this Court cannot accept the defense that he was only trying to pay his debts to Jimmy Muit when he was arrested. We find nothing substantive in Valler's attempt to discredit the victim's positive identification of him on the trifling observation that Atty. Tioleco was too confused at the time of his abduction to recognize accused-appellant's physical features accurately. It is truly evident from the testimony of Atty. Tioleco that his vision and composure were not impaired by fear or shock at the time of his abduction and that he had the opportunity to see vividly and remember unerringly Valler's face Q: car? Where were these two unidentified men positioned inside the

Q: By the way, what car did you use when you were roaming around Quezon City on October 6 in the evening? A: Jimmy's car, which was somewhat red in color. Reddish.

A: One of them was at the driver's seat and the other one was immediately behind the driver's seat. Q: Now, could you please describe to this honorable court the person who was seated on the driver's seat? A: He has a dark complexion, medium built and short hair at that time. Q: sir? If you see that person again will you be able to identify him

Q: And what car did you use the following day when you took the bag? The same car? A: The same car, the Toyota car which was somewhat reddish in color. Such a clear attempt to mislead and deceive the Court with such unsolicited replies cannot succeed. On October 8, 1996, in the vicinity of McDonald's, he was seen alighting from the blue Toyota

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A:

Yes, sir.

Q: So you saw him at the time you were kidnapped that is why you were able to identify him when he was ushered in? A: When he was brought into the kitchen I saw him. When I saw him, I knew he was one of the suspects. Q: When you saw him, he was in handcuffs? Yes, sir, that is correct. You were informed that his name is Gerry Valler?

Q: And if he's present in the courtroom will you be able to point to him? A: Yes, sir.

Q: At this juncture your honor we would like to request with the court's permission the witness be allowed to step down from the witness stand and approach the person just described and tap him on his shoulder. COURT INTERPRETER: Witness stepping down from the witness stand and approached the person he had just described and tapped him on his shoulder and who when asked to identify himself he gave his name as Gerry Valler.101 Even on cross-examination, Atty. Tioleco was steadfast in his reference to Gerry Valler Q: What stage was that when your eyeglasses were grabbed by these persons inside the car? A: That was after the other accused entered the vehicle and the car zoomed away, that was when they were putting a blindfold on me, that was the time when they started removing my eyeglasses, sir x x x x102 Q: So when you were inside the car, you had difficulty seeing things inside the car because you were not wearing your eyeglasses? A: No, sir, that is not correct, because they were close, so I can see them x x x x103 Q: And as a matter of fact, it was the PACC operatives who informed you that the person being brought in was also one of the suspects, am I correct? A: That is not correct, sir. They said that, but I know that is one of the suspects because he was the person who was driving the vehicle at the time I got kidnapped. So I know him.

A: Q:

A: When he went inside the house and the kitchen, they started interviews, that is where I learned his name, Gerry Valler x x x x 104 Q: But I thought that when you were pushed inside the car, you were pushed head first, how can you easily describe this person driving the vehicle and the person whom you now identified as Roland Garcia? A: Even if they pushed my head, there was an opportunity for me to see the face of the accused.105 As we held in People v. Candelario,106 it is the most natural reaction for victims of crimes to strive to remember the faces of their assailants and the manner in which the craven acts are committed. There is no reason to disbelieve Atty. Tioeleco's claim that he saw the faces of his abductors considering that they brazenly perpetrated the crime in broad daylight without donning masks to hide their faces. Besides, there was ample opportunity for him to discern their features from the time two (2) of his kidnappers approached and forced him into their car and once inside saw the other two (2), including Gerry Valler, long enough to recall them until he was blindfolded. The victim's identification of accused-appellant Valler is not any bit prejudiced by his failure to mention Valler's name in his affidavit. It is well-settled that affidavits are incomplete and inaccurate involving as they do mere passive mention of details anchored entirely on the investigator's questions. 107 As the victim himself explained Q: Now, in Question No. 5 and I quote x x x Why did you not identify here the name of the driver as one Gerry Valler?

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A: Because they never asked me the name. They just asked me to narrate what happened. Had they asked me the name, I could have mentioned the name.108 In light of the positive identification by the victim of accused-appellant Valler, the latter's denial must fall absolutely. Clearly, positive identification of the accused where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter prevails over his defense.109 When there is no evidence to show any dubious reason or improper motive why a prosecution witness would testify falsely against an accused or falsely implicate him in a heinous crime, the testimony is worthy of full faith and credit.110 Finally, we do not see any merit in Valler's enumeration of alleged inconsistencies in the testimony of P/Chief Insp. Gilbert Cruz concerning (a) the time and place of meeting between the PACC operatives and Floriana Tioleco; (b) the schedule of the first and second ransom pay-offs; (c) the number of Floriana Tioleco's companions during the aborted first pay-off; (d) the number of occupants in the blue Toyota car; and, (e) the PACC operatives' recognition of Floriana Tioleco during the ransom payments. This is an argument that clutches at straws. For one, the purported inconsistencies and discrepancies involve estimations of time or number, hence, the reference thereto by the witness would understandably vary. Furthermore, they are too minor to warrant the reversal of the judgment of conviction. They do not affect the truth of the testimonies of witnesses nor do they discredit their positive identification of accused-appellants. On the contrary, such trivial inconsistencies strengthen rather than diminish the prosecution's case as they erase suspicion of a rehearsed testimony and negate any misgiving that the same was perjured.111 We also do not believe that accused-appellants Rogel and Lariba are innocent bystanders in this case. It taxes the mind to believe Rogel's defense that as a caretaker of the place where Atty. Tioleco was detained, he observed nothing unusual about this incident. An innocent man would have immediately reported such dastardly act to the authorities and refused to sit idly by, but a guilty person in contrast would have behaved otherwise as Rogel did.112 Accused-appellant Lariba's defense is similarly incredible. He joins Gerry Valler in proclaiming that he too was allegedly at the wrong place at the wrong time for the wrong reason of just wanting to tune up the car of Jimmy Muit. But for all these assertions, he failed to produce satisfactory evidence that he was indeed there to repair such car. Of all the days he could have

discharged his work, he chose to proceed on 8 October 1997 when the kidnapping was in full swing. There was even no car to repair on the date that he showed up. Like the submission of Rogel, Lariba's defense falls completely flat for he could have so easily observed the kidnapping of Atty. Tioleco that was taking place in the house of Jimmy Muit. In sum, accused-appellants cannot rely upon the familiar phrase "reasonable doubt" for their acquittal. As demonstrated by the fastiduous references of Valler to alleged inconsistencies of P/Chief Insp. Cruz, not all possible doubt is reasonable since in the nature of things everything relating to human affairs is open to some imaginary dilemma. As we have said in People v. Ramos,113 "it is not such a doubt as any man may start by questioning for the sake of a doubt; nor a doubt suggested or surmised without foundation in facts or testimony, for it is possible always to question any conclusion derived from testimony. Reasonable doubt must arise from the evidence adduced or from the lack of evidence, and it should pertain to the facts constitutive of the crime charged." Accused-appellants have not shown the presence of such fatal defects in this case. Clearly, all the elements and qualifying circumstances to warrant conviction for the crime of kidnapping for ransom and serious illegal detention have been established beyond reasonable doubt. Third. We go into the criminal liability of each accused-appellant. There is no doubt that Gerry Valler and Ronald Garcia are principals by direct participation and co-conspirators in the kidnapping for ransom of Atty. Tioleco. Their respective participation in perpetrating the crime cannot be denied. As regards their liability as co-conspirators, we find the same to have also been shown beyond reasonable doubt. Conspiracy exists when two or more persons come to agreement concerning the commission of a felony and decide to commit it for which liability is joint.114 Proof of the agreement need not rest on direct evidence as the felonious covenant itself may be inferred from the conduct of the parties before, during, and after the commission of the crime disclosing a common understanding between them relative to its commission.115 The acts of Valler and Garcia in coordinating the abduction, collection of ransom and detention of their victim indubitably prove such conspiracy. Lariba and Rogel were caught inside the house where Atty. Tioleco was detained. P/Chief Insp. Paul Tucay testified on their involvement Q: Okey, when you stormed the place, do you know where these two men were?

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A: Q: A: Q:

The two men were seated at the sala during that time, sir. They were seated at the sala when you entered the place? Yes, sir. What happened after entering the gate?

A:

There were two revolvers.

Q: And can you please describe these revolvers to this Honorable Court? A: Yes, sir x x x x The revolvers confiscated on that raid are one (1) .38 caliber revolver without serial number loaded with 6 rounds of ammunition, live ammo, one .357 also loaded with 6 rounds of live ammunitions.116 Correlating the above testimony with the other evidence, it is clear that at the time Lariba and Rogel were caught, Atty. Tioleco had already been rendered immobile with his eyes blindfolded and his hands handcuffed. No evidence exists that he could have gone elsewhere or escaped. At the precise moment of their apprehension, accused-appellants Lariba and Rogel were unarmed although guns inside one of the rooms of the house were available for their use and possession. Assessing these established circumstances in the manner most favorable to Lariba and Rogel, we conclude that they were merely guarding the house for the purpose of either helping the other accused-appellants in facilitating the successful denouement to the crime or repelling any attempt to rescue the victim, as shown by the availability of arms and ammunition to them. They thus cooperated in the execution of the offense by previous or simultaneous acts by means of which they aided or facilitated the execution of the crime but without any indispensable act for its accomplishment. Under Art. 18 of The Revised Penal Code, they are mere accomplices. In People v. De Vera117 we distinguished a conspirator from an accomplice in this manner Conspirators and accomplices have one thing in common: they know and agree with the criminal design. Conspirators, however, know the criminal intention because they themselves have decided upon such course of action. Accomplices come to know about it after the principals have reached the decision, and only then do they agree to cooperate in its execution. Conspirators decide that a crime should be committed; accomplices merely concur in it. Accomplices do not decide whether the crime should be committed; they merely assent to the plan and cooperate in its accomplishment. Conspirators are the authors of a crime; accomplices are merely their instruments who perform acts not essential to the perpetration of the offense.

A: We announced that we were police officers of the Presidential Anti-Crime Commission. Q: Do you know what happened with these two men during that time? A: They were caught by surprise and they were about to run to the first room. Q: What happened when these two men who were at the living room or at the sala, when they ran to the first room? A: We surprised them and cornered them in that room.

Q: What about the team of Major Quidato, where did they proceed? A: Major Quidato's team proceeded to the second room where Atty. Tioleco was being kept. Q: According to you, you gave chase to these two men who were earlier in the sala and they ran upon your announcement that you were police officers? A: When we cornered them in that room, they were about to grab the two revolvers loaded with six (6) rounds of ammunitions. Q: Where were these revolvers placed, Mr. Witness?

A: They were placed on top of a cabinet, which, when you enter in the room, is placed on the right side of the room. Q: How many revolvers were you able to recover?

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In the instant case, we cannot deny knowledge on the part of Lariba and Rogel that Valler and Garcia had kidnapped Atty. Tioleco for the purpose of extorting ransom and their cooperation to pursue such crime. But these facts without more do not make them co-conspirators since knowledge of and participation in the criminal act are also inherent elements of an accomplice.118 Further, there is no evidence indubitably proving that Lariba and Rogel themselves participated in the decision to commit the criminal act. As the evidence stands, they were caught just guarding the house for the purpose of either helping the other accused-appellants in facilitating the success of the crime or repelling any attempt to rescue the victim as shown by the availability of arms and ammunition to them. These items contrast starkly with the tried and true facts against Valler and Garcia that point to them as the agents ab initio of the design to kidnap Atty. Tioleco and extort ransom from his family.1wphi1.nt Significantly, the crime could have been accomplished even without the participation of Lariba and Rogel. As stated above, the victim had been rendered immobile by Valler and Garcia before the latter established contacts with Floriana Tioleco and demanded ransom. The participation of Lariba and Rogel was thus hardly indispensable. As we have held in Garcia v. CA, "in some exceptional situations, having community of design with the principal does not prevent a malefactor from being regarded as an accomplice if his role in the perpetration of the homicide or murder was, relatively speaking, of a minor character."119 At any rate, where the quantum of proof required to establish conspiracy is lacking and doubt created as to whether the accused acted as principal or accomplice, the balance tips for the milder form of criminal liability of an accomplice.120 We are not unaware of the ruling in People v. Licayan that conspiracy can be deduced from the acts of the accused-appellants and their co-accused which show a concerted action and community of interest. By guarding Co and Manaysay and preventing their escape, accused-appellants exhibited not only their knowledge of the criminal design of their co-conspirators but also their participation in its execution.121 But the instant case is different. Considering the roles played by Lariba and Rogel in the execution of the crime and the state the victim was in during the detention, it cannot be said beyond reasonable doubt that these accused-appellants were in a real sense detaining Atty. Tioleco and preventing his escape. The governing case law is People v. Chua Huy122 where we ruled The defendants' statements to the police discarded, the participation of the other appellants in the crime consisted in guarding the detained men to keep them from escaping. This participation was simultaneous with the commission of the crime if not with its

commencement nor previous thereto. As detention is an essential element of the crime charged, as its name, definition and graduation of the penalty therefor imply, the crime was still in being when Lorenzo Uy, Tan Si Kee, Ang Uh Ang, William Hao and Young Kiat took a hand in it. However, we are not satisfied from the circumstances of the case that the help given by these accused was indispensable to the end proposed. Our opinion is that these defendants are responsible as accomplices only. Fourth. In the beginning, we noted that neither Lariba nor Rogel who were both convicted of illegal possession of firearms and ammunition in Crim. Case No. Q-96-68049 filed a notice of appeal in accordance with established procedures, although the records show that accused-appellant Gerry Valler needlessly did so exclusively in his behalf.123 But in light of the enactment of RA 8294 amending PD 1866 effective 6 July 1997,124 and our ruling in People v. Ladjaalam125 followed in Evangelista v. Siztoza,126 we nonetheless review this conviction to give effect to Art. 22 of The Revised Penal Code mandating in the interest of justice the retroactive application of penal statutes that are favorable to the accused who is not a habitual criminal. 127 In Ladjaalam we ruled that if another crime was committed by the accused he could not be convicted of simple illegal possession of firearms under RA 8294 amending PD 1866 Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separate offense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8 years of prision mayor x x x x The trial court's ruling and the OSG's submission exemplify the legal community's difficulty in grappling with the changes brought about by RA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows: Sec. 1. - Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. - The penalty of prision correccional in its maximum period and a fine of not less

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than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coup d'etat. The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.

The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor. x x x x A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the "other crime" is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294's simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearms cannot be deemed an aggravating circumstance x x x x The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that "no other crime was committed by the person arrested." If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. The Court is aware that this ruling effectively exonerates accusedappellants x x x of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor, for the second, it is only prision correccional. Indeed, an accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence necessarily arises from the language of RA 8294 the wisdom of which is not subject to review by this Court. 128 Accordingly, we are constrained to dismiss Crim. Case No. Q-96-68049 and set aside the judgment of conviction therein since accused-appellants Rotchel Lariba and Rodante Rogel cannot be held liable for illegal

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possession of firearms and ammunitions there being another crime kidnapping for ransom - which they were perpetrating at the same time. In fine, we affirm the conviction of Gerry Valler and Ronald "Roland" Garcia as principals and Rotchel Lariba and Rodante Rogel as accomplices for the crime of kidnapping for ransom and serious illegal detention. This Court is compelled to impose the supreme penalty of death on Valler and Garcia as mandated by Art. 267 of The Revised Penal Code, as amended by RA 7659. The penalty imposable on Lariba and Rogel as accomplices is reclusion perpetua, the penalty one degree lower than that prescribed for the crime committed pursuant to Art. 52 in relation to Art. 61, par. (1), of the Code. We however set aside the judgment in Crim. Case No. Q-96-68049 convicting Lariba and Rogel of illegal possession of firearms and ammunition in light of the foregoing discussion. As regards the moral damages against accused-appellants to be paid by them in solidum, we find the amount of P200,000.00 to be reasonable compensation for the ignominy and sufferings Atty. Tioleco and his family endured due to accused-appellants' inhumane act of detaining him in blindfold and handcuffs and mentally torturing him and his family to raise the ransom money. The fact that they suffered the trauma of mental, physical and psychological ordeal which constitute the bases for moral damages under the Civil Code129 is too obvious to require still the recital thereof at the trial through the superfluity of a testimonial charade. Following our finding that only Gerry Valler and Ronald "Roland" Garcia are principals by direct participation and conspirators while Rotchel Lariba and Rodante Rogel are accomplices, we apportion their respective responsibilities for the amount adjudged as moral damages to be paid by them solidarily within their respective class and subsidiarily for the others. 130 Thus, the principals, accused-appellants Ronald "Roland" Garcia and Gerry Valler, shall pay their victim Atty. Romualdo Tioleco P150,000.00 for moral damages and the accomplices P50,000.00 for moral damages. WHEREFORE, the Decision of the court a quo is MODIFIED. In Crim. Case No. Q-96-68049 (G.R. No. 133489) accused-appellants RONALD "ROLAND" GARCIA y FLORES and GERRY B. VALLER are declared guilty as PRINCIPALS of kidnapping for ransom and serious illegal detention and are sentenced each to death, while accused-appellants RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO are convicted as ACCOMPLICES and are ordered to serve the penalty of reclusion perpetua with the accessories provided by law for the same crime of kidnapping for

ransom and serious illegal detention. Accused-appellants are further ordered to pay moral damages in the amount of P200,000.00, with the principals being solidarily liable for P150,000.00 of this amount and subsidiarily for the civil liability of the accomplices, and the accomplices being solidarily liable for P50,000.00 for moral damages and subsidiarily for the civil liability of the principals.1wphi1.nt Finally, in Crim. Case No. Q-96-68050 (G.R. No. 143970) the Decision of the court a quo convicting RODANTE ROGEL y ROSALES and ROTCHEL LARIBA y DEMICILLO of illegal possession of firearms and ammunition is REVERSED and SET ASIDE in light of the enactment of RA 8294 and our rulings in People v. Ladjaalam131 and Evangelista v. Siztoza.132 Four (4) Justices of the Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority that the law is constitutional and the death penalty can be lawfully imposed in the case at bar. In accordance with Art. 83 of The Revised Penal Code, as amended by Sec. 25 of RA No. 7659, upon the finality of this Decision let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of Her Excellency's pardoning power. Costs against accusedappellants. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

G.R. No. 93475 June 5, 1991 ANTONIO A. LAMERA, petitioner, vs. THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. Esmeraldo U. Guloy for petitioner.

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DAVIDE, JR., J.:p 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 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: 1. Ernesto Reyes More than thirty (30) days 2. Paulino Gonzal More than thirty (30) days 3. Patricio Quitalig Less than nine (9) days 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 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. 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. Petitioner appealed from said Decision to the Regional Trial Court of Pasig, Metro Manila which docketed the appeal as Criminal Case No. 70648. 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 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 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:

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I 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 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 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 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 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 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: xxx xxx xxx . . . 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

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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 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 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 In Our resolution of 1 August 1990 We required respondents to comment on the petition. 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. 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 10 while the People moved that its Comment be considered as its memorandum. 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. 11 In 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, 12 We 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

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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 In People vs. Bacolod, supra., from the act of firing a shot from a submachine 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 one cannot be pleaded as a bar to the other under the rule on double jeopardy. 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. Quasi offenses under Article 365 are committed by means of culpa. Crimes against Security are committed by means of dolo. 14 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. 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 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., 15 wherein 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.

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WHEREFORE, for lack of merit, the Petition is DENIED without pronouncements as to costs. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

In September 1993, during the pendency of the appeal, the electricity supply of the unit was cut off due to non-payment of bills. As a result, Albano transferred her children to her fathers house, four houses away, leaving a maid to sleep in the unit. Albano claims that on November 2, 1993, at around 1:00 p.m., she went to her unit. She noticed that the lead pipe she used to hang clothes to dry was missing. When she returned at about 8:00 a.m. the following day, November 3, 1993, she discovered the padlock of the main door changed, preventing her from entering the premises. She went to see petitioner but he was not around. On November 4, 1993, Albano again returned to her unit. She peeked through the window jalousies and saw that the place was already empty. She immediately reported the matter to the barangay officials, who in turn, advised her to go to the police. Thereafter, she filed a complaint for grave coercion, qualified trespass to dwelling and theft against petitioner. On November 14, 1993, Albano tried to see the accused, but again failed. This time she noticed that the roofing of her unit had been removed and the main door locked from the inside. She was informed that on November 1, 1993, Marzalado, Jr., and his female companion took her lead pipe and on November 2, 1993, Marzalado, Jr., took her personal belongings and brought them inside his house. Accordingly, Albano filed a suit for trespass to dwelling with the MeTC of Quezon City against Marzalado, Jr., thus: The undersigned accuses SALVADOR MAR[Z]ALADO, JR., of the crime of Trespass to Dwelling, committed as follows: That on or about the 2nd day of November, 1993, in Quezon City, Philippines, the above-named accused without any justifiable cause, did then and there, wilfully, unlawfully and feloniously enter the dwelling place of CRISTINA N. ALBANO located at No. 241 Road 1, Pag-Asa, this City, against the latters will and without her consent or any members of the household, to the damage and prejudice of the said offended party. CONTRARY TO LAW. Quezon City, Philippines, March 16, 1994.[6]

[G.R. No. 152997. November 10, 2004] SALVADOR MARZALADO,* JR., petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION QUISUMBING, J.: This petition for review on certiorari assails the Decision[1] dated November 9, 2001 of the Court of Appeals, in CA-G.R. CR No. 22645, which affirmed the Decision[2] dated November 5, 1998 of the Regional Trial Court (RTC) of Quezon City, Branch 79, in Criminal Case No. Q-98-74695. The RTC upheld the Metropolitan Trial Court (MeTC) of Quezon City, Branch 35, convicting herein petitioner Salvador Marzalado, Jr., for violation of Article 280[3] of the Revised Penal Code on Qualified Trespass to Dwelling, and sentencing him to suffer the penalty of two (2) months and one (1) day of arresto mayor and to pay a fine of P500 and to pay the costs.[4] This petition likewise assails the Resolution[5] dated April 23, 2002, of the Court of Appeals, denying the petitioners Motion for Reconsideration. The antecedent facts are as follows: Cristina N. Albano was the lessee of a unit in the house owned by Luz Marzalado, the mother of herein petitioner, Salvador Marzalado, Jr. Sometime in February 1993, Luz Marzalado filed an ejectment case against Albano. Judgment was rendered against Albano, who was ordered to vacate the leased premises and to pay the unpaid rentals. Albano appealed to the RTC.

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On May 12, 1994, the accused was arraigned and pleaded not guilty to the charge. A summary hearing followed, with Albano and her witness, Narciso Raniedo, testifying for the prosecution. Raniedo, the owner of the house fronting Albanos unit, testified that at around 5:00 p.m., on November 1, 1993, he was about to enter his house, when he glanced at the unit leased by Albano. He saw Marzalado, Jr., take a lead pipe and hand it to a woman waiting at the terrace of Marzalado, Jr.s house. Raniedo further said that on November 2, 1993, sometime between 4:30 p.m. and 5:00 p.m. he was relaxing in front of his house, when he heard noises coming from Albanos apartment. There he saw Marzalado, Jr., forcibly open the door of the unit, bring out the belongings of Albano, and take these to his own house. For his defense, Marzalado, Jr., testified that after the MeTC ruled against Albano in the MeTC ejectment case filed by his mother and because of the disconnection of the electricity, Albano already vacated the leased unit and moved to her fathers place. According to petitioner, on November 3, 1993, he was on his way home when he saw water in a continuous stream flowing out of Albanos unit. He then searched for Albano but to no avail. He reported the matter to the barangay officers and asked for two barangay tanods to accompany him to the vacated unit. They went inside the unit where they found an open faucet, with water flooding the floor. He accused Albano of deliberately leaving the faucet open. He claimed Albano filed the criminal case of trespass to dwelling to harass him and to retaliate against him and his family. On October 28, 1997, the MeTC handed down the following judgment: WHEREFORE, the Court finds accused Salvador Mar[z]alado, Jr. GUILTY beyond reasonable doubt of Qualified Trespass To Dwelling under Article 280 of the Revised Penal Code and he is hereby sentenced the penalty of TWO (2) MONTHS and ONE (1) DAY of Arresto Mayor and to pay a fine of P 500.00 and to pay the costs. SO ORDERED.[7] The trial court observed that the defense would have been a good defense had the alleged entry been made on November 2, 1993, the date stated in the Information, instead of November 3, 1993, the date the accused said he entered the premises because Albano deliberately left the faucet open. Marzalado, Jr., appealed to the RTC, which ruled the matter in this wise:

WHEREFORE, finding no reversible error in the appealed decision dated October 28, 1997, the same is hereby affirmed in toto. SO ORDERED.[8] Undaunted, Marzalado, Jr., elevated the matter to the Court of Appeals in CA-G.R. CR No. 22645. The Court of Appeals found no error in the challenged RTC decision and held: WHEREFORE, premises considered, the lower courts decision is hereby AFFIRMED in toto and the instant petition is DISMISSED. SO ORDERED.[9] Hence, petitioner comes to this Court assigning as errors of the court a quo the following: I THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISIONS OF THE METROPOLITAN TRIAL COURT AND THE REGIONAL TRIAL COURT, BOTH OF QUEZON CITY BECAUSE THE INCIDENT HAPPENED ON NOVEMBER 3, 1993, AND NOT NOVEMBER 2, 1993, AND THE PETITIONERS ENTRY IN THE PREMISES IS FULLY JUSTIFIED BECAUSE HE WAS ASSISTED BY THEIR BARANGAY SECRETARY AND TWO BARANGAY TANOD[S] AND THE ENTRY IS FOR A VALID PURPOSE. HENCE, THERE IS NO TRESPASS TO DWELLING. II THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE INFORMATION THAT THE ALLEGED TRESPASS TO DWELLING HAPPENED ON NOVEMBER 2, 1993. THUS, WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS, THERE WAS A MISAPPREHENSION OF FACTS, AND IT SHOULD NOT HAVE ADOPTED THE FINDINGS OF FACTS OF THE METROPOLITAN TRIAL COURT AND REGIONAL TRIAL COURT.[10] The foregoing may be reduced to one issue: Did the Court of Appeals err in sustaining the conviction of Marzalado, Jr., for qualified trespass to dwelling?

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The petitioner argues that the Court of Appeals committed a reversible error in sustaining the lower court, since in the proceedings below, there was a grave misapprehension of facts by both the MeTC and RTC in finding that he committed trespass to dwelling despite the glaring proof that his entry was justifiable under paragraph 4, Article 11 of the Revised Penal Code[11] - to prevent an imminent danger to property. He stresses that while he did enter the unit, he did so with the aid of barangay officers and for the sole purpose of turning off the faucet that was causing the flooding of the unit. He adds that the Information filed against him should be considered fatally defective for having stated that his entry was on November 2, 1993, when in fact it was on November 3, 1993. The Office of the Solicitor General (OSG) counters that petitioners entry cannot be justified since the flooding of the floor was not a danger to life nor property. Rather, the OSG claims that the flooding of the unit could have been averted had the petitioner resorted to merely turning off the inlet valve of the water source. The OSG also stresses petitioners failure to refute the charge that he entered the complainants unit on November 2, 1993. Moreover, the OSG asserts that the exact time of the commission of the crime in the Information need not be so accurate to preclude other dates near the actual date. It is sufficient that the Information states a time as near to the actual date, more so, where the time is not an essential element of the offense, as in this case. Anent the Information, the contention of petitioner that the Information is defective is untenable. Admittedly, there is a discrepancy on the precise date of the alleged trespass - the Information charges petitioner Marzalado, Jr., with trespass to dwelling allegedly committed on November 2, 1993, while petitioners defense relate to an entry made the following day. The discrepancy however, does not make the information defective. Facts and circumstances necessary for inclusion in the information are determined by reference to the definition and elements of the specific crime.[12] In trespass to dwelling, the elements are: (1) the offender is a private person; (2) that he enters the dwelling of another; and (3) such entrance is against the latters will. The exact date when the alleged trespass occurred is not an essential element of the offense of trespass. It is sufficient that the Complaint or Information states that the crime has been committed at any time as near as possible to the date of its actual commission.[13] Rule 110, Section 11 of the Rules of Court provides that it is not necessary to state in the complaint or information the precise time the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was

committed as the information or complaint will permit. A variance between the time set out in the indictment and that established by the evidence during trial does not constitute an error so serious as to warrant reversal of a conviction solely on that score.[14] Thus, the error invoked by the petitioner in the date of the alleged trespass in the Information is of no grave import, for it is far from being the decisive issue in this case. However, still incumbent upon the prosecution is to establish the criminal intent and the guilt of the accused beyond reasonable doubt. Criminal cases rise and fall on the strength of the evidence of the prosecution and not the weakness of the evidence of the defense or the lack of it.[15] In the prosecution for trespass, the material fact or circumstance to be considered is the occurrence of the trespass. The gravamen of the crime is violation of possession[16] or the fact of having caused injury to the right of the possession.[17] To prove trespass, the prosecution presented as witness Narciso Raniedo who testified that he saw petitioner enter the unit at around 4:30 p.m. to 5:00 p.m. on November 2 and take out Albanos belongings. No other eyewitness corroborated Raniedos testimony. However, by her own account, Albano declared that she discovered the trespass in the evening of November 3,[18] the same day the barangay certified Marzalado, Jr.s entry. This obviously does not discount the fact that although the exact date of entry varied as between petitioner and respondent, they both were referring to the same entry. What remains now is the issue of whether the entry of petitioner Marzalado, Jr., was legally justified. We rule that it is, based on the circumstances of this case. As certified by Barangay Lupon Secretary Romulo E. Ragaya, the unit rented by Albano was forcibly opened by the owner because of the strong water pressure coming out of the faucet[19] As Albano herself admitted, she and her children already left the unit when the electricity supply was cut off in the month of September. Hence, nobody was left to attend to the unit, except during some nights when Albanos maid slept in the unit. Clearly, Marzalado, Jr., acted for the justified purpose of avoiding further flooding and damage to his mothers property caused by the open faucet. No criminal intent could be clearly imputed to petitioner for the remedial action he had taken. There was an exigency that had to be addressed to avoid damage to the leased unit. There is nothing culpable concerning Marzalado, Jr.s judgment call to enter the unit and turn off the faucet instead of closing the inlet valve as suggested by the OSG.

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Thus, we find the evidence on record insufficient to hold petitioner guilty of the offense charged. Palpable doubt exists in our mind as to the guilt of petitioner. In our view, the Court of Appeals erred in affirming the Decision of the Regional Trial Court and of the Metropolitan Trial Court when it found petitioner guilty of Qualified Trespass to Dwelling. In a situation of ambiguity, where the act of the accused permits of two possible signification, one culpable and another innocent, the ambiguity should be resolved in favor of the accused. The evidence in this case simply fails to convince us of his guilt beyond reasonable doubt. WHEREFORE, the petition is GRANTED. The Decision dated November 9, 2001 of the Court of Appeals in CA-G.R. CR No. 22645, and its Resolution dated April 23, 2002 denying the Motion for Reconsideration, are REVERSED and SET ASIDE. Petitioner SALVADOR MARZALADO, JR., is hereby ACQUITTED of the charge against him for lack of evidence to sustain a conviction beyond reasonable doubt. SO ORDERED. Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

Augusto Balde has instituted the proceedings at bar to challenge the correctness of those adjudications of his guilt. He does not deny the essential fact of his having entered the dwelling of the complaining witness, Leonida Achacon, without her permission, but he argues that this does not make him guilty of the felony charged the gravamen of which is entrance against the will of the complainant, or against the latter's presumed or express prohibition. 3 He also contends that he was denied the right of preliminary investigation in that he was not accorded an opportunity to present evidence in the course thereof. 4 Balde's arguments entail a review of the evidence to determine first whether or not the facts justify the conclusion of a presumed prohibition against his entrance to Leonida's dwelling, and additionally, whether or not the latter's 10-year old maidservant had in fact granted Balde permission to come in; and second, whether or not his proofs are sufficient to establish that he was in truth deprived of the right to adduce evidence at the preliminary investigation before the fiscal. This consideration warrants giving short shrift to Balde's appeal. It is axiomatic that this Court will not generally review the factual findings of the Court of Appeals. And it should be stressed that except in criminal cases in which the penalty imposed is reclusion perpetua or higher , 5 appeals to the Supreme Court are not a matter of right but of sound judicial discretion allowed only on questions of law which must be distinctly set forth in the petition for review on certiorari, and only when there are special and important reasons therefor . 6 The record discloses no such special and important reasons. In any case, the record shows no reversible error in the factual conclusions of the Court of Appeals to the effect that (1) that the relations between Balde and Leonida his cousin, were of so unfriendly a character as to give "sufficient warning upon ** (appellant Balde) that his entry into (Leonida's) house ** was unwarranted and objectionable," 7 i.e. unwelcome and prohibited; (2) that Leonida's housemaid, Felicitas, had not really given Balde permission to come into the house; 8 (3) that these circumstances, and the actuality of Balde's having laid hands on Leonida after intruding into her dwelling, are adequately proven by the evidence given by the prosecution witnesses who were deemed to be more credible and trustworthy than the defense witnesses; 9 and (4) Balde proofs failed to establish that the fiscal's preliminary investigation had not been regular. 10

G.R. No. L-46980 May 29, 1987 AUGUSTO BALDE, petitioner, vs. HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

NARVASA, J.: Having been convicted by the City Court of Legaspi City of the crime of qualified trespass to dwelling under Article 280 (paragraph 2) of the Revised Penal Code, 1 and his conviction having been affirmed by the Court of Appeals which in consequence imposed on him an indeterminate penalty ranging from 4 months and 1 day of arresto mayor to 2 years, 3 months and 1 day of prision correccional, and the payment of a fine of P200.00, 2

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WHEREFORE, the petition for review on certiorari is denied, the judgment of the Court of Appeals subject thereof being in accord with the facts and the law, with costs against the petitioner. Yap (Chairman), Melencio-Herrera, Cruz, Gancayco and Sarmiento, JJ., concur. Feliciano, J., is on leave.

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 abovenamed 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:

G.R. No. 171511

March 4, 2009

RONNIE CALUAG, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION QUISUMBING, J.: For review on certiorari are the Decision1 dated December 9, 2005 of the Court of Appeals in CA-G.R. CR No. 28707 and its Resolution 2 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

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 abovenamed 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 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

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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 gun-poking incident to the barangay. While she had intended to report the mauling of her husband, as he instructed her, what she 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;

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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 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

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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.

feloniously kidnap Yvonne Traya, a minor, 8 years of age, thereby depriving her of her liberty against her will, to the damage and prejudice of said offended party. Arraigned on February 24, 1993, Appellant Astorga, duly assisted by his counsel, 3 pleaded not guilty to the charge. Trial on the merits ensued. The dispositive portion of the assailed Decision 4 reads as follows: 5 WHEREFORE, premises considered, the guilt of accused ARNULFO ASTORGA having been proven beyond reasonable doubt, pursuant to Article 267 paragraph 4 of the Revised Penal Code, [he] is hereby sentenced to Reclusion Perpetua to be served at the National Penitentiary, [Muntinlupa]. This appeal was filed directly with this Court in view of the penalty imposed. 6 The Facts

G.R. No. 110097 December 22, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ARNULFO ASTORGA, accused-appellant.

PANGANIBAN, J.: Actual detention or "locking up" is the primary element of kidnapping. If the evidence does not adequately prove this element, the accused cannot be held liable for kidnapping. In the present case, the prosecution merely proved that appellant forcibly dragged the victim toward a place only he knew. There being no actual detention or confinement, the appellant may be convicted only of grave coercion. The Case The foregoing principle is used by this Court in resolving the appeal of Arnulfo Astorga challenging the March 31, 1993 Decision 1 of the Regional Trial Court of Tagum, Davao convicting him of kidnapping. In an Information 2 dated March 24, 1992 and docketed as Criminal Case No. 8243, Appellant Arnulfo Astorga was charged with violation of Article 267, paragraph 4 of the Revised Penal Code, allegedly committed as follows: That on or about December 29, 1991 in the Municipality of Tagum, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and by means of force, did then and there willfully, unlawfully and

Evidence for the Prosecution The evidence for the prosecution was narrated in the Decision of the trial court, as follows: 7 Prosecution witnesses extant from their testimonies categorically assert that around 6:30 P.M. children of neighbors were near the store of the grandparents of Yvonne Traya. Incidentally, there was a brown out that evening hence candle was used. The daughter and nephew of her aunt Bebeth were quarelling [sic] about the possession of a flashlight until the glass got lost. Accused or "Boy" Astorga, went near and asked her daughter Jane what happened. Glenda or Bebeth grabbed her baby and went home. Accused told Yvonne to go with him to buy candy. She did not answer and accused immediately grabbed and hold [sic] her hand. Accused placed his hand on her shoulder and covered his [ sic] mouth. Yvonne was only eight (8) years old on 29 December 1991 when she was brought by the accused allegedly to buy candy. Some stores were closed; others were opened. Accused never went inside the

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store to buy candy. Instead she [sic] held and dragged Yvonne until they went inside the compound of Maco Elementary School. They were walking inside the perimeter fence, [while the accused was] holding closely the child. Later, there being no person around the gate, accused brought her out to the highway and walked towards the direction of Tagum. Yvonne stays with her grandparents and so with her parents at Sitio Binuangan, Maco. She asked him where they were going and accused answered that they were going home. She told him that they were already on the opposite direction because her grandparent's house is at Binuangan, while their route was going towards Tagum. Indeed, it was an opposite direction. Notwithstanding the assertion of Yvonne that they were on the wrong direction, accused placed his hands on her shoulder and dragged her. She cried and protested that she must go home. Accused did not heed her plea and while she was forced to walk she continued crying. While accused and Yvonne were walking in the situation as described, somewhere near the Luponlupon bridge they met some group of men. Having met on their opposite direction, the two, were noticed by the group of youngsters. The group were bound to Maco Catholic Church to see a drama. Having met the two and as noticed by the group accused keep [sic] on looking back at them. The group were suspicious about the man who was bringing a child. The group decided to follow them. Accused hurriedly walked fast with Yvonne, and to prevent from being overtaken, he carried the victim and ran. They were chased. After a distance of half a kilometer they were overtaken. Edwin Fabila declared that Jonathan, one of his companions with others in chasing, asked the accused where they were bound. He answered towards Binuangan. The group noticed something suspicious because their destination was already towards Tagum which is an opposite direction to Binuangan. When asked who is the child, accused answered Traya. Jonathan one of those who chased knew the family. He got from the accused Yvonne who showed some resistance. Nevertheless, the group brought her home at Binuangan. Likewise, accused was also brought by them to Yvonne's home. The house of accused and Yvonne were five (5) meters away. Accused wanted to talk to the parents of the

victim, but he was driven by her aunt and adviced [sic] to leave otherwise he will be stabbed by Yvonne's father. He left and never talked with the family. Evidence for the Defense The facts as viewed by the defense are presented in the Appellant's Brief, 8 dated December 10, 1993: The defense consisted of the testimonies of Arbeth Nalcot and the accused-appellant himself. Arbeth Nalcot, a resident of Tagum, Davao, testified tht [sic] in the afternoon of December 29, 1991, she was at the Municipal Hall of Maco, Davao. She saw Astorga with two (2) companions. They were drinking Red Horse and were already drunk. When they finished drinking, she went with Astorga to the latter's house. (TSN, pp. 7-8 and 18, March 23, 1993). The house of Astorga is about 5 meters away from the house of the complainant[.] Yvonne came and asked money from the accused to buy candy. The two went together and she was left behind. She told them to hurry up. When they failed to return, she looked for them, but because it was already dark. She did not find them. She went back to the house of the accused. ( Ibid., pp. 10-11). Arnulfo Astorga, a resident of Maco, Davao and a gold panner testified that "at around 1:00 P.M. of December 29, 1991, he arrived at Maco from Tagum. Upon arrival his two friends, Vicvic and Anding were already at his home. They decided to drink, hence they proceeded to Adecor Cottage and drank two gallons of Tuba. At around 2:00 P.M., they were at the market place and drink beer grande. At 5:00 P.M. on the same day, the three proceeded near the municipal hall and with some persons, they again continued their drinking spree taking up Red Horse wine". (Decision, p. 3). At about 6:00 P.M., he was already drunk and he went home. Yvonne approached him and asked him money to buy candy. He told her that they will buy. They were not able to buy because the two stores where they went were already closed. (TSN, pp. 12 and 13, March 24, 1993). He took her for a stroll for his drunkeness [ sic] to subside. They walked inside the school premises which was about 20 meters away from the second store. They went out of the school compound going towards Lupon-lupon because due to his

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drunkneness [sic], he thought it was the way towards their house. (Ibid, pp. 14-15) They reached Lupon-lupon bridge, crossed it twice thinking that it was the bridge near the municipal hall. After reaching Purok, they met several persons, he was asked were (sic) they were heading, and he answered to Tagumpay, but he was told that they [sic] way was already going to Tagum. He requested those persons to guide them to Tagumpay. They asked him who was the child he was carrying. He answered that it was Traya's child, ( Ibid, pp. 16-17). He was carrying the child because he was already crying she already wanted to go home. The group of persons, men and women, guided them. Yvonne was being held by the women. They arrived at Yvonne's house. He talked to the auntie of the child and told her that he would converse with her but he was advised to go away because the father of Yvonne might hack him. So he went home. ( Ibid, pp. 1819) The Trial Court's Ruling The trial court justified its finding of guilt with the following discussion: 9 Accused insisted [that] he was already drunk hence when he took Yvonne to buy candy, he strolled with her so that his drunkenness be subsided. All these defense version was rebutted by Yvonne when she categorically declared that she did not smell liquor on the accused. His defense of intoxication has no leg to stand [on]. Consider these facts. Never did he present Vicvic and Anding to corroborate that he was intoxicated that afternoon and at dusk because of their drinking spree from 1:00 P.M. until 5:00 P.M. He did not rebut the testimonies of Fabila that when they noticed his actions suspicious bringing with him a child, he walked fast dragging Yvonne. When he noticed that the group of youngsters were chasing him, he carried Yvonne and ran until they covered a distance of half a kilometer in chasing them, until they had overtaken him.

If he was that intoxicated, being under stupor and weakened by liquor, he could not ran that fast carrying Yvonne for half a kilometer. Moreover, Yvonne categorically in straight forward testimony asserted that she did not smell liquor on the accused. Accused, naivety [sic], that because of his intoxication, he got lost and was not able to proceed with Yvonne to Binuangan was a shallow afterthought. It must be recalled that Yvonne told him they were already going at opposite direction from home. Instead they were heeding towards Tagum. Accused did not change course. xxx xxx xxx Again, not only force was employed in having Yvonne as captive by dragging, slapping her mouth and was holding her tight, but accused also used psychological means of scaring her about a red eyed ghost. Through this means and efforts, Yvonne was deprived of her liberty and was by force prevented to go home to her parents. On rebuttal, Yvonne denied that she asked money from accused to buy candy. She also denied as testified by defense witness Arbeth Nalcot that she went to the house of the accused on 29 December 1991 or on any other dates to ask money from Astorga for candy. Defense evidence are [sic] punctured with unbelievability in his off tangent and incredible theory of drunkardness. His alleged being lost in the direction of Binuangan in spite of Yvonne's insistence and that of the person they met that he was on the wrong way considering that there are no criss crossing roads except the highway is preposterous. The Issues Appellant imputes the following errors to the trial court: 10

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I The trial court erred in giving credence to the testimonies of the prosecution's witnesses which were replete with inconsistencies and contradictions. II The trial court erred in convicting the appellant despite the fact that Yvonne Traya was not detained, locked-up or deprived of her liberty. III The trial court erred in convicting the appellant despite the fact that appellant had no motive to kidnap Yvonne Traya. In the main, appellant challenges the credibility of the prosecution witnesses and the legal characterization of the acts imputed to him. The Court's Ruling The appeal is partly meritorious. Appellant should be convicted only of grave coercion, not kidnapping. First Issue: Credibility of Prosecution Witnesses Appellant contends that the testimonies of the prosecution witnesses are not worthy of credence because they were inconsistent and improbable. He cites the following: Glenda Chavez testified that she was present when the accused told Yvonne that they will buy candy. She sensed that the accused was drunk. (TSN, pp. 10-11, March 10, 1993). These testimonies were contradicted by Yvonne Traya when she declared that Glenda Chavez had already went [sic] inside their house when [the] accused told her that they will buy candy (TSN, pp. 10, March 16, 1993). She testified that she did not smell liquor on the accused. (Decision, pp. 3-4)

Edwin Fabila testified that their group was able to overtake the accused at a distance of 2 fathoms and they [ sic] him about 15 to 20 meters (TSN, p. 35, March 10, 1993) Arnel Fabila, on the other hand, testified that they overtook the accused after chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993). Yvonne Traya testified that the accused could not ran fast carrying her because she was heavy. (TSN, p. 19, March 16, 1993). However, Arnel Fabila declared that they were able to overtake the accused only after chasing him at a distance of half kilometer (TSN, p. 10, March 11, 1993) meaning accused was running fast. 11 We hold, however, that inconsistencies in the testimonies of witnesses concerning minor details and collateral matters, like the examples cited by appellant, do not affect the substance, veracity or weight of their declarations. These inconsistencies reinforce, rather than weaken, their credibility, for different witnesses of startling events usually perceive things differently. 12 Indeed, the testimonies of the prosecution witnesses cannot be expected to be uniform to the last detail. The testimony of Glenda Chavez that the accused was drunk at that time allegedly contradicted Yvonne's statement that the accused did not smell of liquor. This does not detract from the credibility of either witness. Yvonne, then an eight-year-old child, 13 and her Aunt Glenda, then twenty-seven years old, 14 do not have the same experiences or level of maturity; hence, their perceptions of events differ. More important, whether the accused was drunk or not is an insignificant detail that does not substantially affect the testimonies of these witnesses. Further, the discrepancy in the witnesses' estimate of the distance covered by the men who chased appellant does not render their testimonies incredible. 15 Quite the contrary, such discrepancy shows their candor and sincerity, demonstrating that their testimonies were unrehearsed. 16 Yvonne testified that when appellant noticed the group of men following them, he carried her and ran. Yvonne's testimony is in accord with that of Arnel Fabila a member of the group who chased appellant that they were able to overtake appellant after chasing him half a kilometer. 17

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Appellant's challenge to the credibility of the prosecution account is also premised on the alleged failure of the trial court to consider the following points: 18 a) that the alleged victim admitted that she and the accused casually moved around the school premises, as if they were strolling; That when they were already in the highway, they were also walking openly and casually until they were met by a group of youngster[s]. Edwin Fabila, one of the prosecution's witnesses, corroborated the fact that the two were walking casually along the highway when he first saw them; b) That it is highly incredible that accused and the alleged victim will not be seen or noticed by the people travelling or those persons residing along the highway if it was true that the accused was dragging her and she was continuously crying from her residence up to a distance of more than one kilometer; c) That the accused and the alleged victim were travelling at a very slow pace; a distance of barely a kilometer for a period of more than two hours; d) That the accused was very drunk, having been drinking different kinds of intoxicating liquors from 1:00 p.m. to 5:00 p.m., causing him to be confused on which way they should take in going home. e) That the accused was not hurt by the group of youngsters who allegedly rescued the child, nor was immediately brought to the municipal hall which was just near the house of the victim for the filing of the necessary charge; this [sic] actuations only confirm the fact that the accused merely sought their help in guiding them home, and f) That it took more than one week for the complainant and her parents to file the case at the Fiscal's Office.

We cannot sustain these contentions. The charge is not belied by the one-week delay in the filing of the complaint. It has been held that delay or vacillation in making a criminal accusation does not necessarily weaken the credibility of a witness where such delay is satisfactorily explained. 19 In the present case, one week was reasonable, considering that the victim was a resident of Binuangan and that the case was filed in Tagum, Davao. Furthermore, the group whom appellant met did not hurt or bring him to the municipal hall, because they deemed it more urgent at the time to rescue Yvonne and to bring her home, which they actually did. 20 There is no settled rule on how a group of young men should react upon seeing a young girl snatched by an older man. Verily, violence is not the only normal reaction of young men who see a girl being forcibly taken. Appellant's claim that he and Yvonne were merely strolling and walking casually does not negate the fact that Yvonne was deprived of her will. As noted by the trial court, appellant used physical force and psychological means in restraining her. 21 Despite her young age, Yvonne was able to clearly recount the events that transpired on that fateful night. Moreover, there is no merit in the argument that the people travelling or living along the highway should have noticed appellant and Yvonne. The fact is that a group of men actually noticed and ultimately chased them. All in all, appellant utterly fails to justify a departure from the long settled rule that the trial court's assessment of the credibility of witnesses should be accorded great respect on appeal. 22 Second Issue: No Motive to "Kidnap" Petitioner contends that "[t]here was no evidence presented to prove why the accused should kidnap Yvonne Traya." He submits that "the prosecution had failed to prove [any] motive to support the alleged kidnapping incident, thus, making the theory of the defense more credible and believable." 23 The contention is insignificant. Motive is not an element of the crime. Furthermore, motive becomes material only when the evidence is circumstantial or inconclusive, and there is some doubt on whether a

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crime has been committed or whether the accused has committed it. Indeed, motive is totally irrelevant when ample direct evidence sustains the culpability of the accused beyond reasonable doubt. 24 In this case, the identity of appellant is not in question. He himself admitted having taken Yvonne to Maco Central Elementary School. Third Issue: Kidnapping or Coercion? Appellant contends that the prosecution failed to prove one essential element of kidnapping the fact of detention or the deprivation of liberty. The solicitor general counters that deprivation of liberty is not limited to imprisoning or placing the victim in an enclosure. Citing People vs. Crisostomo, 25 he argues: (T)he act proven in the record constitutes (kidnapping). It is no argument against this conclusion that the accused deprived the offended party of her liberty without placing her in an inclosure; because illegal detention, as defined and punished in our Code, may consist not only in imprisoning a person but also in detaining her or depriving her in any manner of her liberty. 26 We agree with appellant's contention this time. Under Article 267 of the Revised Penal Code, 27 the elements of kidnapping are as follows: 1. That the offender is a private individual. 2. That he kidnaps or detains another, or in any other manner deprives the latter of his liberty. 3. That the act of detention or kidnapping must be illegal. 4. That in the commission of the offense, any of the following circumstances is present: 5. That the kidnapping or detention lasts for more than five (5) days; or 6. That it committed simulating public authority; or

7. That any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or 8. That the person kidnapped or detained is a minor, female, or a public officer. The Spanish version of Article 267 of the Revised Penal Code uses the terms "lockup" (encerrar) rather than "kidnap" (secuestrar or raptar). Lockup is included in the broader term of "detention," which refers not only to the placing of a person in an enclosure which he cannot leave, but also to any other deprivation of liberty which does not necessarily involve locking up. 28 Likewise, the Revised Penal Code was originally approved and enacted in Spanish. Consequently, the Spanish text is controlling in cases of conflict with the English version, as provided in Section 15 of the Revised Administrative Code. 29 A review of the events as narrated by the prosecution witnesses ineluctably shows the absence of "locking up." Victim Yvonne Traya testified: 30 Q And after that what happened next? A When Auntie Bebeth went inside her house she was already bringing her child and bringing with her candle. And Arnulfo Astorga told me that we will buy candy, sir. Q And after that? A And while I was not answering the question he immediately grabbed me. xxx xxx xxx Q And after that, after he held your hand, what did he do next? A He placed his hands on my shoulder and also covering [sic] my mouth.

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xxx xxx xxx Q And after that what did he do next? A He brought me to the school. Q What school did Boy Astorga bring you? What is the name of the school? A Maco Central Elementary School. Q How far is Maco Central Elementary School from your house? A A little bit near. Q When Boy Astorga brought you to school, was it dark? A Yes, sir. Q Exactly where in Maco Elementary School did Boy Astorga bring you? A Inside the gate, sir. Q And once inside the gate what did he do to you? A We were going around the school? xxx xxx xxx Q Do you know why you were going around the school? A Yes, sir. Q Why, what did he do?

A We were going around and when he saw that there is no person in the gate we passed at that gate. Q And where did he go after passing that gate? A Towards Lupon-lupon, sir. xxx xxx xxx Q What about you, did you talk to him? A I asked him where we were going and he told me that we are going home and I told him that this is not the way to our house, and we did not pass this way. (Witness gesturing a certain direction). Q And so when you said that that is not the way, when you said that is not the way because our house is towards Binuangan. . . By the way, you said you were going to Lupon-lupon, do you know to what direction is going to Lupon-lupon, to what place is Lupon-lupon going to? A Yes, sir. Q Where? A Going to my place. Q Do you know the place where it was going? What is that place? A On the road going to Tagum. Q Now, what, about your house, where is it going?

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A To Binuangan. Q And so when you . . . what did he do next when you said that is not the place going to your house? A We continued walking and he also placed his hands on my shoulder and dragged me, sir. Q What about you, what did you do when he was dragging you? A I was crying, sir. Q Did you say any word to him when you were crying? A Yes, I told him that we are going home. Q And what did Boy Astorga say? A He told me that we will be going home, and told me not to make any noise because if I will make any noise we will be lost on our way. Q And so, what did you do? A I continued crying, sir. Q And after that, what happened? A We continued walking and we met a person and he asked Boy Astorga where we are going, sir. Q What did that man ask Boy Astorga? A The man asked Boy Astorga where are you going, and Boy Astorga answered, to

Binuangan, but the man continued to say that this way is going to Tagum and not to Binuangan any more. Q What else did the man ask, if any? A I further said that we will already leave, and we will be the ones to go to Binuangan, and after that, Boy Astorga put me down because he urinated. So, at that instance, I ran, but, after he urinated, he already took hold of me not to run any more because there is a ghost. Q When you said you ran away after Boy Astorga left you when he urinated, where did you run? A Towards Binuangan, sir. Q Towards the direction of your house? A Yes, sir. Q And you were overtaken again by Boy Astorga? A Yes, sir. Q What did he do to you when you were overtaken by Boy Astorga? A He took hold of me again and he told me, he threatened me that there is [sic] a red eyes but I answered him that is [sic] not a red eyes of the ghost but that is a light coming from the vehicle. Q Now, what happened next? A He placed a necklace on me, sir.

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xxx xxx xxx A He was dragging me and I was crying when he was dragging me. Q While you were being dragged did you make any plea to him? A Yes, I told him that I will go home. Q And what did he say? A He said that we will go home but I know [sic] that place we are [sic] heading to is [sic] not a way to our home but it is [sic] the opposite. Q So, what happened next? A He continued dragging me and after that we met plenty of persons and I shouted for help and at that instance, he slapped my mouth and after a few steps he already carried me. xxx xxx xxx A He continued walking and I also continued crying and I told him that I want to go home and he told me that we are heading towards home, but I told him that the way we are going to is not the way to our house. Q By the way, when you shouted [for] help, was it loud? A Yes, sir. Q So, what happened next?

A He continued running and he stopped several vehicles but they did not stop, so, we just continued walking. Q After that, what happened next? A He moved closer to the banana plants. He looked back and he saw that persons were already chasing him and after that he carried me and ran. From the foregoing, it is clear that the appellant and the victim were constantly on the move. They went to Maco Elementary School and strolled on the school grounds. When nobody was at the Luponlupon bridge, appellant took the victim to the highway leading to Tagum, Davao. At that time, Yvonne pleaded with appellant that she really wanted to go home to Binuangan, but appellant ignored her pleas and continued walking her toward the wrong direction. Later on, the group of Witness Arnel Fabila spotted them. Appellant Astorga carried the victim and ran, but Fabila's group chased and caught up with them. This narration does not adequately establish actual confinement or restraint of the victim, which is the primary element of kidnapping. 31 Appellant's apparent intention was to take Yvonne against her will towards the direction of Tagum. Appellant's plan did not materialize, however, because Fabila's group chanced upon them. The evidence does not show that appellant wanted to detain Yvonne; much less, that he actually detained her. Appellant's forcible dragging of Yvonne to a place only he knew cannot be said to be an actual confinement or restriction on the person of Yvonne. There was no "lockup." Accordingly, appellant cannot be convicted of kidnapping under Article 267 of the Revised Penal Code. Rather, the felony committed in this case is grave coercion under Article 286 of the same code. Grave coercion or coaccion grave has three elements: (a) that any person is prevented by another from doing something not prohibited by law, or compelled to do something against his or her will, be it right or wrong; (b) that the prevention or compulsion is effected by violence, either by material force or such a display of it as would produce intimidation and, consequently, control over the will of the offended party; and (c) that the person who restrains the will and liberty of another has no right to do so or, in

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other words, that the restraint is not made under authority of a law or in the exercise of any lawful right. 32 When appellant forcibly dragged and slapped Yvonne, he took away her right to go home to Binuangan. Appellant presented no justification for preventing Yvonne from going home, and we cannot find any. The present case should be distinguished from People vs. Rosemarie de la Cruz. 33 Here, Appellant Astorga tricked Yvonne to go with him by telling her that they were going to buy candy. When Yvonne recognized the deception, she demanded that she be brought home, but appellant refused and instead dragged her toward the opposite direction against her will. While it is unclear whether Appellant Astorga intended to detain or "lock up" Yvonne, there is no question that he forced her to go with him against her will. In Rosemarie de la Cruz, Victim Whiazel voluntarily went with accused. Furthermore, the accused in that case failed to consummate the crime of kidnapping because of the timely intervention of the victim's neighbor. Thus, the Court held in that case: 34 In a prosecution for kidnapping, the intent of the accused to deprive the victim of the latter's liberty, in any manner, needs to be established by indubitable proof (People vs. Puno, 219 SCRA 85 [1993]). The acts held by the trial court, and maintained by the People, as consummating the crime of kidnapping in this case are those when accused-appellant held the victim's hand and refused to let go when the victim asked to go over to her neighbor, who by then already saw what was happening. This happened for only a very brief span of time and the evidentiary record shows that there were a good number of people present at that time, that a guard was stationed at the gate, and that there was at least a teacher nearby. The child could have just as easily shouted for help. While it does not take much to scare the wits out of a small child like Whiazel, under the attendant circumstances, we cannot say with certainty that she was indeed deprived of her liberty. It must further be noted that up to that brief moment when Cecilia saw them, and the child asked to be let go, the victim had gone with accusedappellant voluntarily. Without any further act reinforcing the inference that the victim may have been denied her liberty, even taking cognizance of her minority, the Court hesitates to find that kidnapping in the case at bar was consummated. While it is a well-entrenched rule that factual findings of trial courts, especially when they concern the appreciation of

testimony of witnesses, are accorded great respect, by exception, when the judgment is based on a misapprehension of facts, as we perceive in the case at bar, the Court may choose to substitute its own findings (People vs. Padua, 215 SCRA 266 [1992]). The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations constituting grave coercion, the elements of which were sufficiently proved by the prosecution. Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal Procedure: Sec. 4. Judgment in case of variance between allegation and proof When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offenses as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved. At the time the felony was committed on December 29, 1991, the penalty imposed by law for grave coercion was arresto mayor and a fine not exceeding five hundred pesos. 35 The Indeterminate Sentence Law does not apply here because the maximum penalty does not exceed one year. 36 However, appellant has been imprisoned for more than six (6) months. He has more than served the penalty imposable for such an offense. 37 WHEREFORE, the appeal is hereby PARTIALLY GRANTED. Appellant is CONVICTED only of grave coercion and is sentenced to six (6) months of arresto mayor. Unless he is being detained for any other valid cause, his IMMEDIATE RELEASE is herewith ordered, considering that he has more than served the maximum penalty imposable upon him. That director of prisons is DIRECTED to inform this Court, within five days from receipt of this Decision, of the actual date the appellant is released. No costs. SO ORDERED. Narvasa, C.J., Romero, Melo and Francisco, JJ., concur.

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