MAIDA TOMIO alias SATO TOSHIO and NAKAJIMA TAGAHIRO alias YAMADA TAKAO, accused-appellants. G.R. No.

75576 September 30, 1991 IN THE MATTER OF PETITION FOR HABEAS CORPUS OF TADAHIRO NAKAJIMA and TOMIO MAEDA, petitioners. The Solicitor General for plaintiff-appellee. Jose T. Arroyo for accused T. Nakajima. Atienza, Tabora, Del Rosario & Castillo for accused T. Maeda.

deprive him of his liberty, without legal justifications and against his will. Contrary to Law. The information was filed after an ex-parte preliminary investigation, conducted pursuant to General Order No. 39, since the offended party is a tourist. This General Order grants civil courts concurrent jurisdiction with the military tribunals over crimes where the offended party is a tourist or a transient, which the former has to dispose of within twentyfour (24) hours after their filing by the arresting officers. 1 On 16 May 1988, the trial court issued an Order setting the arraignment and trial of the appellants on 19 May 1986 an appointing Citizens Attorney Abdulkalim Askali of the CLAO (now PAO.) as counsel de officio for the accused. 2 On 19 May 1986, appellants, through a de parte counsel, Jose T. Arroyo, filed with the Office of the City Fiscal of Manila a Very Urgent Motion For Re-investigations 3 alleging therein that the Information was filed without the benefit of a preliminary investigation and that they are innocent, which they can prove at a preliminary investigation. However, the records fail to show that Atty. Arroyo insisted on this motion. On the contrary, at the arraignment on 19 May 1986, he categorically stated that the appellants were ready for arraignment, and even requested for a Japanese interpreter, which was not favorably acted upon since the appellants understand and can speak English and Tagalog. 4 Both having entered a plea of not guilty, trial proceeded immediately. 5 At the trial on that day and the succeeding two days, the prosecution presented seven witnesses, namely: Pat. Eugenio Guillermo, Pat. Marlon Ursua, Cpl. Virgilio Cabural, complainant Tatsumi Nagao, Sgt. Jovito Gutierrez, Wally Martinez and Daishin Nagao, and offered documentary exhibits.

DAVIDE, JR., J.:p Appellants were arrested at about 3:45 o'clock in the afternoon of 12 May 1986 at the main branch of the Rizal Commercial Banking Corporation (RCBC) in Makati, Metro Manila, while allegedly receiving the partial payment of the ransom money from Tatsumi Nagao, a Japanese tourist. On 15 May 1986, an Information for Kidnapping and serious illegal detention for ransom (Article 267 of the Revised Penal Code) was filed against them with the Regional Trial Court of Manila by Vivencio Dionido, Assistant City Fiscal of Manila, which was docketed as Criminal Case No. 86-45055. The accusatorial portion of the Information reads: That on or about May 2, 1986, and subsequently thereafter, in the City of Manila, Philippines, the said accused, conspiring and confederating together with six (6) others whose true names, real Identities and present whereabouts are still unknown and helping one another, being then private individuals, did then and there wilfully, unlawfully and feloniously, for the purpose of extorting ransom from the immediate family of TATSUMI NAGAO, kidnap or detain the latter and

For their defense, appellants relied on their own testimonies which they gave in open court on 22 May 1986. On 27 May 1986, the trial court promulgated a decision finding the appellants guilty beyond reasonable doubt of the crime charged and sentencing each of them to suffer the deathpenalty and to pay the costs. 6 The case is now before Us for automatic review. The facts of the case, as established by the evidence for the prosecution and summarized by the Solicitor General in the Brief for the Appellee, are: Tatsumi Nagao, a Japanese national, arrived in Manila on April 29, 1986 for a five-day vacation tour and was billeted at the Holiday Inn (pp. 5-6, tsn, May 21, 1986). On May 2, 1986, while Nagao was having lunch alone at the coffee shop of the hotel, two (2) Japanese men approached his table and asked him if he were a Japanese to which he answered in the affirmative. Later, he came to know one of the men as Maida Tomio alias Sato Toshio and the other as Mitamura. They joined him at his table and informed him that they have been in the Philippines for quite a time and offered themselves as his guides in Manila. Thereafter, Mitamura brought him to the sauna bath of the hotel and a department store in Manila. Eventually, they ended up at the Leo's Restaurant located along Roxas Boulevard at around 7:30 o'clock in the evening where they had dinner. Before leaving the restaurant, Nagao's companion placed a pack of cigarettes on his (Nagao's) shirt pocket and him to just wait because he has to talk to a taxi driver. After taking few steps from the restaurant, Nagao was approached by five (5) plainclothesmen who Identified themselves as

policemen. They bodily searched him and found the pack of cigarettes earlier given him which the policemen claimed contained marijuana. Thereafter, the policemen brought him to the Southern Police District Station (pp. 23-26 tan, May 20, 1986). While Nagao was at the police station, accusedappellant Tagahiro Nakajima alias Yamada arrived. Later, Sato Toshio alias Maida Tomio also arrived. Both acted as interpreters for him. One of them inform him that if he is found guilty of possession of marijuana, he can sentenced from six (6) to twelve (12) years imprisonment. The two (2) then suggested that Nagao give money to the policemen who, they claim, demanded U.S. $100,000.00 for his release. Nagao agreed. Thereafter, Toshio and Nakajima informed him that they had advanced the payment of the bribe money to the policemen who, accordingly, agreed to release him (pp. 3641, tsn, May 20, 1986). Thereafter, Nagao returned to his hotel escorted by the appellants and a policeman. While there, his escorts did not allow him to leave the hotel. They also demanded that he immediately call up his parents in Japan for the money they allegedly advanced. Instead of calling up his parents, he called up a friend and told him of his predicament. The three escorts stayed with him in the hotel up to 10:00 o'clock the following morning. Thereafter, they checked out and transferred to the Intercontinental Hotel in Makati. Appellants again ordered Nagao to call up his parents. Later, appellants transferred Nagao to the Philippine Village Hotel where they again asked him to call up his father in Japan about the money. Nagao's father refused to pay the amount demanded but when Sato talked to him over the phone, he agreed to pay three million yen (pp. 17-31, tsn, May 21, 1986).

From the Philippine Village Hotel, Nagao was brought by the appellants to the Virra Condominium in Makati. When he called up his father upon orders of the appellants, he learned that his father had already remitted money to the Rizal Commercial and Banking Corporation (RCBC) in Makati. Forthwith, appellants brought Nagao to RCBC where he withdrew U.S. $1,850.00 and gave it to them. Upon leaving the bank, they were met by policemen from the Western Police District whose help had been earlier sought on May 8, 1986 by the Japanese Embassy in Manila. Appellants and Nagao were brought to the Western Police District for investigation (pp. 38-40, tsn, May 19, 1986). Appellants were subsequently charged with the crime of kidnapping and serious illegal detention. ... 7 Upon the other hand, the version of the accused-appellants, as testified to by them, is summarized by the trial court as follows: The version given by the defense in exculpation of the accused is as follows: On May 2, 1986, the accused NAKAJIMA TAGAHIRO alias YAMADA TAKAO met for the first time Tatsumi Nagao at the Southern Police District headquarters in Manila. Tatzumi had been arrested by the police earlier for possessing marijuana cigarettes and since he could not speak English very well he was contacted to act as Nagao's interpreter. Nagao intimated to him that he (Nagao) wanted to settle the case and offered money to the police. The accused MAIDA TOMIO alias SATO TOSHIO later came and together they requested the police to release Nagao because according to him the marijuana was not his but belonged to

somebody who gave it to him. Nagao told the accused that he offered to pay the amount of US $100,000 to the police which he said he would borrow them from a friend. Yamada told Nagao that the amount was too much and suggested that he (Nagao) should call his father in Japan to send the money here. Nagao was ultimately released by the police for some reason not known to Yamada and he went back to his hotel at Holiday Inn together with the accused YAMADA and SATO. At the hotel Nagao called up his friend in Japan with the help of YAMADA who placed the call since Nagao cannot speak English. YAMADA did not have occasion to talk to Nagao's friend over the phone. After 30 minutes, another call was made by Nagao to Japan. That night of May 2 both accused slept with Nagao in the latter's room at Holiday Inn due to Nagao's request not to leave him inside the hotel. The following day, May 3, Nagao did not know where to go so the accused suggested they look for the cheapest hotel or one where they could stay on credit. The accused MAIDA then made arrangements with a travel agency and, after checking in at the Intercontinental Hotel, they checked out at Holiday Inn and transferred to the Intercontinental Hotel where they stayed up to May 7. At this hotel, Nagao made many phone calls to Japan the accused YAMADA always placing the calls for Nagao. During their stay at the hotel the accused and Nagao went on foot to see a movie at the Quad Theater and to eat at a Japanese restaurant. They also went to Maalicaya Sauna Bath in Quezon City about four times around 10:00 to 11:00 in the evening where Nagao was left alone in one of the rooms with his massage girl attendant. On some of those occasions Nagao would finish and would wait for the accused at the lobby. Twice Yamada

brought Nagao to his house because Nagao requested him not to leave him. On one occasion, the three of them brought down a Filipina girl from their hotel room but only Nagao accompanied her outside the hotel for five to fifteen minutes to see her off and then he came back to the hotel. Yamada denies that he and Sato were always guarding Nagao. As a matter of fact, one time while they were at Virra Condominium the accused went out together to meet some Japanese in Roxas Boulevard around midnight and went back to the hotel almost 4:00 in the morning leaving Nagao alone in the hotel room in the meantime. At Virra Condominium they stayed for two (2) or three (3) days together in one room with Nagao sometimes holding the key to the room. There Nagao also would go out to buy something, eat meals and have some fun. He even bought Nagao, who was with him, a t-shirt in Makati where there were many people. With the help of accused Maida, Nagao made an overseas call to Japan at Virra. The reason they went along with Nagao to the RCBC bank on May 12 was that he did not know how to go there so they brought him to the bank so that he could withdraw the remittance from Japan which was intended as payment for his hotel accommodation and other expenses. After their arrest at the bank they were brought to the WPD headquarters about 4:30 in the afternoon where he (Yamada) was hit by the policemen on his face, body and abdomen. He was also brought inside a room where his hands and feet were tied with a rope and his face covered with cloth after which water was poured on his nose and mouth while the police were asking him questions. In fact, they started hitting him at the bank while he was handcuffed. Besides, his watch costing around

250,000 yen, his 100 grams 18-karat gold bracelet and his necklace were all taken from him and his Mustang car confiscated. His driver's license was also taken and he lost his money in the amount of almost P3,000.00. The police did not even want to accept the name that he gave them which was Nakajima Tagahiro but insisted on adopting Yamada as his name. When his statement was taken he was not asked to seek the assistance of a lawyer. It was the investigator who made the answers in the statement and he was not even allowed to read it but just to sign it which he did almost 3:00 or 4:00 in the morning already after being subjected to blows on his face. He declared that he never demanded money from Nagao for his release. On cross-examination Yamada admitted he is an immigrant and has stayed in the Philippines for almost 12 years but is always going back and forth to Japan. TOMIO MAIDA alias Sato Toshio also met Tatsumi Nagao for the first time on May 12, 1986 but at the coffee shop of Holiday Inn where Tatsumi was staying. SATO had a Japanese guest who needed to change his Philippine pesos to Japanese yen since he was going back to Japan and it was Tatsumi whom SATO saw at the coffee shop and whom he requested to make the currency exchange. Tatsumi was subsequently invited by a Mr. Mitamura to SATO's table where there were many Japanese. Sato left ahead for the airport leaving Tatsumi and Mitamura in conversion. When SATO saw Tatsumi again it was at the Southern Police District headquarters that same day being arrested for illegal possession of marijuana. He talked to the policemen and requested for an interpreter for Nagao since he cannot understand and speak English well. He

found out Nagao had promised to pay the policemen $100,000 already but he was not able to put up the amount. Anyway, he went to the Holiday Inn and there discovered that Nagao had no more money and they talked about the hotel accommodation and other expenses starting the following day. Nagao tried and was able to speak over the phone with Mr. Nagao in Japan who asked him to explain what happened. From Holiday Inn they transferred to Intercontinental Hotel where Nagao was able to check in without his passport as SATO brought him an accommodation request from El Sol travel agency. While they were at the Intercontinental Hotel there was no reason Nagao could not leave the hotel as he was always free to leave it. They also went to Maalicaya Sauna Bath where they each had separate rooms. When he was arrested at the bank with his coaccused his watch, his wallet and his money totaling around P900.00 were taken by the policemen including his necklace and gold bracelet. They also boxed him. During the investigation they let him lie down on the table with his hands handcuffed and, while his face was covered with cloth, they poured water on it. Since he was afraid of what the policemen would do to him he just signed the statement. He did not even know the lawyer Bienvenido de los Reyes who was supposed to assist him during the investigation. He was not allowed to read the statement before he signed it. From Intercontinental Hotel they transferred to Virra condominium. He brought Tatsumi there because he requested him to look for a cheaper hotel.

On cross-examination SATO disclosed that the Japanese Mitamura whom he met for the first time on May 2, 1986, informed him that a Japanese was arrested by the police for possessing marijuana and that when he arrived at the police headquarters he found out it was Nagao who was the one arrested. 8 The trial court ruled that the accused-appellants were guilty as charged because they deprived the offended party, Tatsumi Nagao, of his liberty for the purpose of extorting ransom from him. It said: It must be noted that during all this time, from the evening of May 2 until the arrest of the accused in the afternoon of May 12, it cannot be denied that the accused were always with Tatsumi, singly or both of them, at his hotel room and never losing sight of him. As a matter of fact, the only instance he was ever allowed to go out on his own was at the Intercontinental Hotel when he accompanied a girl out of the hotel to send then the accused were likewise downstairs at the hotel that Tatsumi thought he was only being tested by the accused whether he would escape. Besides, we have to consider that as far as Tatsumi Nagao was concerned he was in a foreign country with no relatives nor close friends. He could not speak or understand any Philippine Language. On top of this, he had no more money as this was taken from him by the police and, worse, his passport was being held by the accused thus destroying any hope of escape from them. Even if he did escape, where would he go without any money or passport and how would he be able to communicate with people since he could not speak English or tagalog? Moreover, what was foremost in his mind was that he was merely on a temporary leash (sic) from the police who were poised arrest him anytime he reneged on his alleged promise to pay. This would mean at least six

years imprisonment not to mention ignominy he would cause on his person and the consequent scandal since he is a Buddhist priest. During all this time that he was with accused he knew that the only way he could prevent any further restraint on his person was to pay the accused from the remittance of his father in Japan. That is why, even the accused were not armed and did not physically restrain his movements, all these circumstances taken together created in Tatsumi Nagao such fear which actually restrained him from doing what he freely wanted to do and resulted in a deprivation of his liberty. In other words, while there was no money to give to the accused he was stuck with them. The Court does not believe the allegation of the accused that they were not demanding any money from Tatsumi Nagao for why would they, who only came to know Tatsumi Nagao on May 2, stick to him like a leech that date until they were arrested on May 12? It could not have been being simply charitable since it would have been more logical to take Nagao temporarily into their homes to avoid more expenses if their intention was really only to help their fellow countryman. What was then the purpose in demanding for the money? The accused suggest that it was for the purpose of reimbursing them for the expenses they had incurred in accommodating Tatsumi Nagao in the hotels and other places. Even if the purpose of the deprivation of Liberty of Tatsumi Nagao alleged by the defense be accepted that is, to compel payment for the expenses incurred by the accused under Article 267 of the Revised Penal Code, as amended by Republic Act No. 1084, the offense is still kidnapping for ransom. Under American rulings, "ransom" has been held to mean in its

ordinary sense as "money," price or reconsideration paid or demanded by for redemption of a captured person or persons, a payment that releases from captivity' (See 75 C.J. 458; 36 Words and Phrases, 102; Keith vs. State, 163, So. 136 120 Fla. 487). Since the accused in this case demanded and received money as a requisite for releasing Tatsumi Nagao from their hold, whatever other motive may have impelled them to do so, the money is still "ransom" under the law. 9 On 22 July 1986, Atty. Arroyo filed with this Court his Withdrawal of Appearance as counsel for the appellant Maida Tomio. 10the law firm of Atienza, Tabora, Del Rosario and Castillo then entered its appearance for the latter. On 18 August 1986, before they could file their Brief, appellants, through another lawyer, Atty. Dominador R. Sta. Maria, Jr., filed with this Court a petition for habeas corpus, 11 which was docketed as G.R. No. 75576. They allege therein that the decision of the court below in Criminal Case No. 8646055, subject of G.R. No. 74630, is "void and illegal" because, among other things, before being investigated, they were tortured, threatened and deprived of their constitutional rights to due process and equal protection of the laws; moreover, aside from the fact that no preliminary investigation was conducted, the complainant's father influenced the Judge directly making the latter's decision "partial, bias (sic) and prejudiced," and the trial court lacked jurisdiction over the offense charged as it was committed at the Holiday Inn Hotel in Roxas Boulevard, Pasay City, not in Manila. In the resolution of 19 August 1986, 12 the Court noted that the questions raised in the petition are also the subject of the appeal in G.R. No. 74630; consequently, the former is but a duplication of the latter which is awaiting the filing of briefs. However, without giving due course to said petition, it required respondents to comment thereon. In the meantime, specifically on 29 August 1986, appellant Tagahiro Nakajima filed his Brief in G.R. No. 74630 13 wherein

he ascribes to the trial court the commission of the following errors: I ... IN CONVICTING THE ACCUSED OF THE CRIME OF KIDNAPPING; II ... IN FINDING THAT FROM THE EVENING OF MAY 2 TO MAY 12, THE ACCUSED WAS ALWAYS WITH NAGAO; III ... IN CONCLUDING THAT ESCAPE FOR TATSUMI NAGAO WAS IMPOSSIBLE BECAUSE HE IS IN A FOREIGN COUNTRY WITH NO CLOSE RELATIVES AND FRIENDS, BECAUSE HE COULD NOT EVEN SPEAK OR UNDERSTAND ENGLISH WELL OR UNDERSTAND ANY PHILIPPINE LANGUAGE, AND BECAUSE HE HAD NO MONEY AND PASSPORT, WITH NOWHERE TO GO; IV ... IN FINDING THAT THE ACCUSED HELD THE PASSPORT OF TATSUMI NAGAO; V ... IN CONCLUDING THAT IT WOULD HAVE BEEN MORE LOGICAL IF THEY TOOK NAGAO TO THEIR OWN HOUSES; VI ... IN CONCLUDING THAT THE ACCUSED DEMANDED FOR RANSOM: and

VII ... IN FINDING THAT THE ACCUSED DEMANDED RECEIVED MONEY AS PREREQUISITE FOR RELEASING NAGAO. By way of an additional assigned error, which is unnumbered, but which he claims to invoke for the first time, he alleges the trial court has no jurisdiction over the crime charged because it was not committed in Manila; if it were committed the Holiday Inn Hotel, which is not located in Manila but Pasay City, it is the proper court of the latter city which has jurisdiction over it. Upon the other hand, appellant Tomio Maeda, through counsel, filed his Brief 14on 18 October 1986. He contends that: I THE TRIAL COURT ERRED IN ITS HURRIED AND RAILROADED DISPOSITION OF THE CASE OF THE ACCUSED TOMIO MAEDA AND TAGAHIRO NAKAJIMA WHOSE RIGHTS TO DUE PROCESS AND FAIR AND IMPARTIAL PUBLIC TRIAL WERE DENIED. II THE TRIAL COURT ERRED IN COMPLETELY DISREGARDING THE POSITIVE AND CATEGORICAL TESTIMONIES OF THE ACCUSED TOMIO MAEDA AND TAGAHIRO NAKAJIMATHEY DID NOT KIDNAP OR DETAIN COMPLAINANT NAGAO NOR DID THEY DEMAND MONEY FOR HIS RELEASE. III THE TRIAL COURT ERRED IN FINDING THAT ALL THE ELEMENTS OF KIDNAPPING WITH RANSOM

WERE PRESENT NOTWITHSTANDING THE FACT THAT THE EVIDENCE PRESENTED BY THE PROSECUTION WERE GROSSLY INSUFFICIENT TO ESTABLISH THE EXISTENCE OF THE ALLEGED OFFENSE. IV THE TRIAL COURT ERRED IN NOT ACQUITTING ACCUSE TOMIO MAEDA AND TAGAHIRO NAKAJIMA ON THE GROUND THAT THEIR GUILT HAS NOT BEEN PROVEN BEYOND REASONABLE DOUBT. On 27 November 1986, the Plaintiff-Appellee, through the Office of the Solicitor General, filed a motion for leave to file a consolidated Appellee's Brief, 15 which the court granted in the resolution of 2 December 1986. 16 Then, on 4 December 1986, the Office of the Solicitor General filed a Comment for the respondents in G.R. No. 75578 17asserting therein that considering that petitioners (accused-appellants) perfected their appeal from the challenged decision, they cannot avail of the writ of habeas corpus since the main purpose of the latter is to determine whether or not a petitioner is legally detained. 18 The issues then in the petition should threshed out in the appeal. In the resolution of 29 January 1987, 19We dismissed the petition for habeas corpus on the ground that, per Section 4 of Rule 102 of the Rules of Court, where the commitment is pursuant to a judgment of conviction, the writ of habeas corpus will not lie. We further said: In the present case, the petitioners have been found guilty beyond reasonable doubt of kidnapping with ransom. They were accordingly sentenced and are now suffering imprisonment by virtue thereof. Dismissal of the petition is thus warranted, for their assertion that they are

being illegally deprived of freedom is without support in law. Moreover, considering that the substance of the issues under consideration is closely interrelated or shows a "parallelism" to the errors allegedly incurred by the trial court and assigned by petitioners in their briefs filed in G.R. No. 74630, the Court agrees with the submission of the Solicitor General that the matters in controversy should be resolved in G.R. No. 74630. This is in conformity with the settled rule that "when a court has jurisdiction of the offense charged and the person of the accused, its judgment, order or decree is valid and is not subject to collateral attack by habeas corpus, for this cannot be made to perform the function of a writ of error, and this holds true even if the judgment, order or decree was erroneous." (Sotto vs. Director of Prisons, 5 SCRA 293, citing Vda. de Talavera vs. Superintendent and Warden of the Correcional (sic) Institution, 67 Phil. 538). Unsatisfied with the said Resolution, petitioners filed on 17 March 1987 a motion for its reconsideration, 20 focusing on the issue of lack of jurisdiction on the part of the trial court, which a Comment was filed by the Office of the Solicitor General on 10 April 1987. 21 Thereafter, petitioners filed a reply the comment. 22 This motion remains unresolved. On 14 April 1987, the Office of the Solicitor General filed Appellee's Brief in G.R. No. 74630 wherein it prays that this Court affirm the judgment of conviction but reduce the penalty to reclusion perpetua pursuant to the new Constitution. 23 The assigned errors of both appellants in G.R. No. 74630 boil down to the following issues:

1) Jurisdiction, which, as admitted by appellant Nakajima, is raised for the first time; 2) Denial of due process, as raised by appellant Tomio Maeda; and 3) Sufficiency of the evidence for the prosecution prove the crime charged. I There is no merit in the claim of lack of jurisdiction. From totality of the evidence presented by both parties, the conclusion is inescapable that during the period from 2 to 12 May 1986, the complainant was brought to or taken from different places by the appellants. More specifically, on 2 May 1986, the day when they made their initial, but crucial move on the target, the complainant (hereinafter referred to as Mr. Nagao), appellants, through the overt act of accused Tomio Maeda alias Sato Toshio and another Japanese, brought complainant "some other places in Manila" 24 after they succeeded in getting his trust and confidence, following a conversation over lunch in a coffee shop at Holiday Inn Hotel. The essential ingredients of the crime charged were thus committed in various places. The case can, therefore, be filed with the appropriate court in any of the places where the complainant was brought to by appellants in the pursuit of or in connection with the crime charged. Section 15 of Rule 110 of the Rules of Court provides that subject to existing laws, in all criminal prosecutions, action shall be instituted and tried in the court of the municipality or territory wherein the offense was committed or any one of the essential ingredients thereof took place. 25 Moreover, in the proceedings below, there was not even the slightest suggestion from the appellants to express their doubts as to the jurisdiction of the court over the case. They did not present any evidence to show that all of the acts

involved in or related to the offense charged took place outside Manila. On the contrary, from their arraignment until the promulgation of the decision, they unequivocally recognized and then yielded to the trial court's jurisdiction over their persons and the offense charged. They voluntarily expressed their readiness to be arraigned, 26 as in fact they were, abandoning in effect their urgent motion for reinvestigation. They took very active part in the trial by extensively and exhaustively cross-examining the witnesses for the prosecution, testifying for themselves in the most detailed manner as possible to conform with the strategy of their counsel, and allowing themselves to be cross-examined by the prosecuting fiscal. There can be no doubt that such active participation was motivated by one desire and was riveted to one goal: a judgment of acquittal on the merits, which necessarily carried with it an unqualified invocation of the jurisdiction and authority of the court. Settled is the rule that a party who voluntarily submitted his cause before a trial court, actively participated in the hearings therein, or invoked its jurisdiction, may not be heard to question its jurisdiction. 27It would be placing a premium on bad faith and yielding to attempts to make a mockery of the judicial process if a party would be permitted to question the very power and authority which he invokes for his own benefit or advantage once he fails to obtain it. II Anent the denial of due process, the main grievance of appellant Tomio Maeda focuses on the alleged "railroaded disposition of the case." The filing of the case pursuant to General Order No. 39, which mandates that it should be disposed of within twenty-four (24) hours after filing by the arresting officer, is inconsistent with the need to make a thorough review assessment of the facts, considering the gravity of the imposable penalty. He further claims that they were tortured and forced to sign statements in the absence of their lawyer, and that the trial on the merits was an example of "justice in haste, justice denied." We are not impressed by the plea.

In the first place, the statements they made during custodial interrogation were not taken into account against them. On the contrary, the trial court rejected such statements in toto and deplored the failure of the police to comply with the procedure prescribed by this Court in making an arrest and in conducting a custodial investigation. Said the trial court: At the outset, it may not be amiss to immediately point out in the case of Morales vs. Ponce Enrile, 121 SCRA 638, and reiterated in the more recent case of People vs. Galit, G.R. No. 51770, March 20, 1985, 28 the Honorable Supreme Court laid down the correct procedure for peace officers to follow when making an arrest and in conducting custodial investigation, thus: 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and counsel, and that any statement he might make could be use against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by most expedient means by telephone if possible or by letter messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition of either the detainee

himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. The Court notes in this case that there was not even an attempt on the part of the police investigators to allow or give a chance to the accused to be assisted by a counsel of their own choice during the custodial investigation. When, indeed a lawyer was provided the accused he turned out to be, after all, a team member of the same police force investigating the accused. When the accused finally signed their respective statements it was already in the early morning of the following day when the said lawyer who was supposed to assist them was no longer around. Even the waiver of the accused Yamada of his right to counsel has not been shown to have been assisted by counsel. The Court therefore doubts the voluntariness of the statements of the accused (Exhs. "C" and "K"). Hence, the same must be rejected in toto. In the second place, while it may be true that the trial lasted only for a few days and the decision was promulgated on the twelfth day after the filing of the information, there is nothing on record that may cast any doubt on the impartiality and neutrality of the judge or on the fairness of his decision which, as We observe, manifests a careful and thorough analysis of the evidence. Appellants made no protest in the court below as to the manner the trial was conducted. After they completed their testimonies and offered their Exhibit "1," their counsel announced that "we are respectfully submitting our case for decision of this Honorable Court." 29 They did not even ask for time to submit a memorandum to aid the court in appreciating the evidence, if indeed the facts

and the issues were complicated. They cannot now be heard to complain that it hastily decided the case, or that it did not make a thorough review and assessment of the evidence. In the third place, all the requisites of due process are present in this case, to wit: (a) a court or tribunal clothed with judicial power to hear and determine the matter before it; (b) jurisdiction lawfully acquired by it over the person of the appellants and over the offense; (c) the appellants were given an opportunity to be heard; and (d) judgment was rendered upon lawful hearing. 30 In People vs. Castillo, et al., 31We ruled that if an accused been proceeded against under an orderly process of law, and only punished after inquiry or investigation upon notice to him, with opportunity to be heard, and a judgment rendered within the authority of the constitutional law, then he has had due process. In the instant case, as stated in the discussion above on jurisdiction, the accused-appellants actively participated in hearing of the case before the trial court and had full an unhampered opportunity to cross-examine the witnesses for the prosecution and to present their own evidence. That General Order No. 39 directs civil courts to dispose the case within twenty-four (24) hours after its filing by the arresting officer, considering that the offended party is a tourist, does not detract from the above conclusion that appellants we not deprived of due process. The requirement, which is merely directory, is not wanting in reason or purpose. The stay of tourists in the country is limited in duration. Tourism is a major dollar-earning industry which the Government has been to promote. Corollarily, it must have to adopt policies to attract tourists and to insure their safety and security while they are in the country. Special laws bearing upon procedure, with the end in view of expediting the hearings and disposition of criminal cases where tourists are the offended parties, may be validly enacted provided that there is substantial compliance procedural due process and non-impairment of substantive due process.

III The third issue requires a determination as to whether or the prosecution has established beyond reasonable doubt the elements of the offense charged. Appellants contend that it has not, for Mr. Nagao was not restrained of his liberty; he was free and could have easily escaped. As to the ransom, appellant Tagahiro Nakajima asserts that: The money remitted by Nagao's fatter was for the payment of his son's hotel bills, and not for ransom purposes (p. 96, tsn., May 21, 1986). Further Nagao's father testified that "That reason why I remitted this money because I want to know whether my son can get this money and to know the whereabout of my son, sir."(p. 107, tan., May 21, 1986).32 However, appellant Tomio Maeda has a different version. According to him, it was in payment of the sum which they advanced to the police for and in behalf of Mr. Nagao to secure the latter's release, and the amount spent for hotel accommodations and additional expenses they incurred in his behalf. Otherwise stated: ... a simple contract of loan existed between complainant and the accused whereby the complainant incurred a legal as well as moral obligation to pay for the expenses advanced by the 2 accused in his favor. This is another reason why complainant stayed in the company of the accused. In the words of the complainant himself, he deemed it "an obligation upon himself to pay for the expenses" advanced by the 2 accused in accommodating him (tsn, May 21, 1986, p. 24-25). Thus, there was no force or compulsion in exacting payment from the accused. There was no demand, as there was no need for it. The complainant knew that he had an obligation and that he had to comply with it. The money to be paid was rightfully due

to the 2 accused. It was nothing more than a payment for a debt in money. 33 The trial court found otherwise. Its findings were based on its appreciation of the evidence for the parties which, in turn, revolved upon the credibility of the witnesses. It is wellsettled that the conclusion of the trial court on the credibility of witnesses is entitled to great weight and respect; and, unless there are substantial facts and circumstances that have been overlooked, which if considered might effect the result of the case, such findings are generally not disturbed on appeal. The reason for this is that the trial court is in a better position to observe the deportment and demeanor of witnesses to determine the veracity of their answers; 34 it has the inestimable advantage of observing the detailed demeanor of the witnesses. 35 We find no reason to depart from this rule. A painstaking review of the evidence in this case clearly discloses the correctness of such findings. The evidence for the prosecution has established beyond reasonable doubt that appellants, together with their coconspirators, had an elaborate and carefully designed plan to kidnap Mr. Nagao in order to obtain ransom from him. The plan was effectively carried out at lunchtime on 2 May 1986 at the coffee shop in Holiday Inn Hotel when appellant Tomio Maeda alia Sato Toshio approached Mr. Nagao to find out if the latter had Japanese yen to be converted to Philippine pesos because a friend was to leave for Japan and needed the yen; Tomio succeeded in having P1,100.00 exchanged for 10,000.00 yen belonging to Mr. Nagao. Then, another Japanese companion of Tomio, one Mr. Mitamura, invited complainant to join them at their table. Tomio left them and proceeded to the airport to send off his friend who was to depart for Japan. 36 By his addition admissions on crossexamination, he clearly revealed, though rather unwittingly, how the plot would be pursued with the assistance of law enforcement authorities. As early as 3:00 o'clock in the afternoon of that day, Mr. Mitamura called Tomio by telephone to inform him that a Japanese was arrested for

having marijuana in his possession, although the name of the latter was not mentioned. Without even being informed as to where the arrested party was brought, Tomio proceeded to the Southern Police District and, upon arriving there at 4:00 o'clock, merely informed the police that a Japanese has marijuana in his possession. He could not, however, mention the name of said Japanese. 37 It should be stressed that at that time, Mr. Nagao had not yet been "arrested" by five (5) policemen of the Southern Police District for possession of a pack of cigarettes allegedly containing marijuana. He was arrested after seven o'clock that evening following a dinner at Leo's Restaurant. This visit then of Tomio to the Southern Police District must have had something to do with a conspiratorial arrangement with some personnel of said office, more specifically the five policemen who, at past 7:00 o'clock that evening, pounced on Mr. Nagao and "arrested" him for alleged possession of marijuana. From the Southern Police District, Tomio called Mitamura, who was in the complainant's room at Holiday Inn Hotel; Mitamura told him that they were to take their dinner at Leo's Restaurant. They did in fact have dinner at Leo's Restaurant, 38 although on direct examination, he said that after the meeting at lunchtime, he saw complainant again only at the Southern Police District. 39 At Leo's Restaurant, Tomio claims: a ... Later on we saw one Japanese holding marijuana inside the restaurant and then Mr. Mitamura requested to call or contact the police in order that this Japanese who was in possession of marijuana be arrested. q So you were informed by Mitamura to contact the southern

police district (sic) that there was this two (sic) Japanese inside the Leo's restaurant who was in possession marijuana cigarette (sic)? a Yes, sir. q These two Japanese were left at Leo's restaurant and one Japanese was in possession of marijuana cigarettes? a Yes, sir. q And did this police officer arrested (sic) these (sic) Japanese who is (sic) in possession of marijuana? a Yes, sir. q And who made this plan? a What plan, sir? q About you and the southern police. At about 7:00 o'clock were (sic) this Japanese holding marijuana was arrested? a That was not a plan, sir. I got only the information fro Mr. Mitamura that some Japanese were in possession of marijuana. q You just gather (sic) this information from Mr. Mitamura but you really inform,(sic) the police? a Yes, sir.

q So that is the plan of Mr. Mitamura? a I think so, sir.

40

Other than Mr. Nagao, no other Japanese was "arrested" for alleged possession of marijuana at Leo's restaurant in the evening of 2 May 1986, after a pack of cigarettes was place inside his left shirt pocket by, according to him, a Japanese. After complainant was "arrested" by the five policemen from the Southern Police District and brought to the headquarters, Tomio showed up, talked to Mr. Nagao and the policemen an recommended the assistance of an interpreter since, according to him, Mr. Nagao cannot understand and speak English well. 41 The interpreter he had in mind was his coaccused Tagahiro Nakajima, who he forthwith called; the latter lost no time in coming to the Southern Police District to act as Mr. Nagao's interpreter. 42 Mr. Nakajima offered additional information not disclosed earlier, i.e., the policemen "found" in the possession of complainant, not just one pack of cigarettes containing 15 stick of marijuana, but a smuggling belt. 43 At the Southern Police District, appellants informed Mr. Nagao that if found guilty of possession of marijuana he can be sentenced anywhere from 6 to 12 years of imprisonment. The two then proposed that he should give money to the policemen, who, they claimed, demanded U.S.$100,000.00. They informed him that if he will not give the money, his name and his case would be published in the newspapers because, at that time, there were some newspaper reporters outside. Mr. Nagao, however, did not have the money; he proposed to contact his parents. However, after they talked to the police in another room, they informed him that they had advanced the payment to the police who thereafter released him. The appellants and a policeman then brought him to his room at the Holiday Inn Hotel. 44 The foregoing scenarios were part of the script. With the obvious connivance of the police, they put the pressure on

the complainant by demanding, allegedly for and in consideration of his release, the amount aforestated. Under the circumstances, with the threat of adverse publicity and imprisonment, it was easy to work on him. To show that they commiserated with him, they made it appear that they advanced the money to the police. We are, however, convinced that the accused-appellants never advanced the money. That is why they stuck to the complainant like "a leech," as vividly described by the trial court, after he was eventually "released" by the police. There is no doubt in Our mind that during the period from 3 May 1986 until the accused-appellants were arrested on 12 May 1986, complainant was moved from one hotel to another by the appellants, effectively depriving him of his liberty. As correctly observed by the Solicitor General, while it may be conceded that complainant had the freedom of locomotion, he "did not have the freedom to leave the hotel premises at will and go wherever he pleased." 45 To keep him within their control, appellant Tagahiro Nakajima, who is a businessman and a resident of 101 Peter's Street, BF Homes, Paraaque, Metro Manila, had to abandon his business and his family to be with Mr. Nagao. Thus, as he admitted upon question by the court, he was, from 3 to 12 May 1986, with the complainant at Holiday Inn Hotel, Intercontinental Hotel, Philippine Village Hotel and Virra Condominium. He slept there, not in his residence. 46 The suite (73) which they occupied Virra Condominium is owned by his co-accused Tomio Maeda. 47 Moreover, appellants never refuted the testimony of Nagao made during cross-examination, that at the hotel they told him that if he did not pay them the amount demanded the policemen, plus the hotel bills and other expenses, would do something to him; they kept on telling him that if he did not pay them, the policemen would arrest him. 48 We are not persuaded by the theory of the appellants that money involved was not ransom money, but rather payment of hotel bills (as claimed by Tagahiro Nakajima) or for reimbursement of the sum they advanced to pay the policemen and for hotel accommodations and additional expenses spent for complainant (as claimed by Tomio

Maeda). In the first place, none of them claimed that either or both of them advanced the money to the police. As a matter of fact, Tagahiro Nakajima testified that he saw the complainant counting the money: q Awhile (sic) ago you stated that he even offered money the police? a Yes, sir. q How much? a When I was reaching (sic) to them, they are (sic) writing papers, after that I think he was counting dollar and he told us one hundred thousand US dollar, but suring (sic) that time I was doubtful how come that big amount he cannot pay the (sic) amount of (sic) One Hundred Thousand US dollar (sic). q Now, after that, what happened next? a After that he told me that he will just borrow from his friend One Hundred Thousand US dollar. I told him that is impossible and that is too much, and I also told him better talk to your father to send money then after that he called up to Japan (sic). q Now, was he released by the police? a Yes, sir.
49

Upon the other hand, as far as could be gathered from the testimony of Mr. Tomio Maeda on direct examination, the money given to the police did not also come from him. Thus: q Did you know as to how much money did he promised (sic) to the police? a Yes, sir. q How much? a One Hundred Thousand US. Dollar (sic) ($100,000.00), sir. q And do you know if he was able to put up that amount to the police? a No, sir. q Now, from the headquarter (sic), where did you go? a At Holiday Inn Hotel, sir. q And upon reaching Holiday Inn Hotel, what happened or what did you do? a Mr. Nagao don't (sic) have any money anymore so we are talking (sic) about hotel accommodation and other expenses starting the next day and he is (sic) also trying to contact his friend, sir. 50 What then was the money they advanced to the police? Nothing. However, they succeeded in making it appear to Mr. Nagao, after they came out of the room at the Southern Police District, that they advanced the amount to the police,

for which reason he was released. This was part of the stratagem to give a semblance of legality to the demand for ransom. Now then, if indeed the appellants only wanted reimbursement for the money "paid" to the police, and that they were merely motivated by a desire to help a fellow Japanese in distress, why did they have to bring him from one expensive hotel to the other, thereby incurring more expenses? Why did they not bring him to their homes, as the trial court asked, if only to show their genuine concern for him? Even granting for the sake of argument that, in effect, there was created a simple loan contract between appellants and Mr. Nagao, as asserted by appellant Tomio Maeda, the deprivation of the former's liberty until the amount shall have been fully "paid" to them, is still kidnapping or illegal detention for ransom. In People vs. Akiran, et al., 51 this Court, through Justice J.P. Bengzon, ruled that even if the kidnapping were to compel the victim to fulfill his promise of defraying the hospital expenses of a brother of one of the accused, there is still kidnapping for ransom, since if that were indeed the purpose, the accused need not kidnap the victim. Elaborating thereon, the Court stated that the last paragraph of Article 267 of the Revised Penal Code, as amended by R.A. No. 1084, which took effect on 15 June 1954, which increases the penalty for kidnapping and serious illegal detention if it is committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances mentioned in said Article were present in the commission of the offense is: ... derived from statutes of the United States, particularly the Lindbergh Law. Thus, American jurisprudence thereon has persuasive application. "Ransom" under American rulings, as used in statutes making kidnapping with intent to hold for ransom a capital offense, has been held to mean in its ordinary sense as "money, price, or consideration paid or

demanded for redemption of a captured person or persons, a payment that releases from captivity." 52 Since the accused in this case demanded and received money as a requisite for releasing a person from captivity, whatever other motive may have impelled them to do so, the money is still ransom under the law. 53 The doctrine in the Akiran case is applicable here. Thus, even if the theory of Tomio is correct, it was not necessary for him and his co-accused Nakajima to deprive the complainant of his liberty to compel him to pay the alleged loan. We thus hold that upon the evidence adduced by the prosecution, the guilt of the accused for the crime charged was proven beyond reasonable doubt and the trial court committed no error in convicting them accordingly. In view, however, of Section 19(1) of Article III of the 1987 Constitution which abolishes the death penalty and provides that any death penalty already imposed shall be reduced to reclusion perpetua, the penalty imposed by the trial court is deemed reduced to reclusion perpetua. In the light of the foregoing, the motion of appellants dated 16 March 1987 to reconsider Our resolution of 29 January 1987 in G.R. No. 75576 must also be Denied for lack of merit. This should not, however, end the story of Mr. Nagao. As adverted to earlier, other parties, namely, Mr. Mitamura, a Japanese national, and the five policemen from the Southern Police District, could be deeply involved in the conspiracy to kidnap him for ransom. Our examination of the records fails to show that Mr. Mitamura and the policemen were investigated or prosecuted in connection with this case. This Court would be remiss in its duty if it were to close its eyes on this matter, more specifically on the alleged involvement of the policemen. Policemen are supposed to enforce the law, protect the people, and maintain peace and order. At the people's expense, they don the uniform of authority and are

allowed to carry the instruments of legal violence. As such, they are bound to faithfully adhere to the Constitutional directive to be at all times accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency. 54 When they fail in that sacred duty and become the lawbreakers, they have no business staying a minute longer in their offices and wearing their uniforms. They deserve nothing but the severest criminal and administrative penalties the law provides. The people's taxes should never be used to maintain and support scalawags in our law enforcement agencies who may use their uniforms and their lawfully issued weapons as convenient shields or instruments for the perpetration of their evil deeds. Accordingly, We direct the Philippine National Police to conduct a thorough investigation, if none has been done so far, into the involvement of the five policemen of the Southern Police District and, should the evidence warrant, file the appropriate criminal and administrative cases against them. As regards Mr. Mitamura, if he is still in the Philippines, efforts must be exerted by the Bureau of Immigration and Deportation, in coordination with the National Bureau of Investigation, to have him investigated and prosecuted, should the evidence warrant. No alien should be allowed to abuse Philippine hospitality and make our country a happy hunting ground for his criminal activities. WHEREFORE, judgment is hereby rendered: 1. In G.R. No. 74630, AFFIRMING, subject to the above provision of Section 19(1) of Article III of the 1987 Constitution, the decision of the trial court in Criminal Case No. 86-45055, and 2. In G.R. No. 75576, DENYING, for lack of merit, the motion to reconsider the resolution of 20 January 1987. Costs against appellants. SO ORDERED. Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FEDERICO MERCADO OR ALBERTO MERCADO, defendant-appellant. The Solicitor General for plaintiff-appellant. Cynthia R. del Rosario for defendant-appellant.

RELOVA, J.: This is an appeal from the decision, dated September 9, 1982, of the then Court of First Instance of Rizal Branch XI, in Criminal Case No. 32112, the dispositive portion of which reads: WHEREFORE, the accused is convicted of the crime charged and is sentenced to reclusion perpetua and to pay the costs. (p. 44, Rollo) As stated by defense counsel, the conflicting versions of the prosecution and the defense are correctly summarized in the decision of the trial court, as follows: The prosecution evidence shows that the accused was the boyfriend of Susan Baylon, the younger sister of complainant Yvonne Baylon. On September 1, 1979, Susan left the family residence for an unknown place. The accused suspected that it was her elder sister Yvonne who instigated her to leave. At about 8:30 o'clock in the morning on the following day while Yvonne was walking on a road at San Carlos Subdivision, Binangonan, Rizal, the accused came from behind her. Without any warning, the accused suddenly grabbed Yvonne by the neck and pointed a knife on her throat. Thereupon, the accused dragged Yvonne to the house of Norma Guerrero, a friend of his. Upon

G.R. No. L-65152 August 30, 1984

reaching the porch of the house, Yvonne asked the accused why he was acting that way. The accused replied that he was angry with her and demanded that she produce her sister, Susan. At this juncture, the accused dragged Yvonne this time to the road side. Then the brothers of Yvonne and some neighbors arrived asking the accused to release Yvonne. But instead of doing so, the accused raised the blouse of Yvonne and inserted his hand underneath it and pointed the knife on her breast. Thereafter, the accused dragged Yvonne to a store where the Chief of Police and some policemen talked to him. The accused told the Chief of Police that he wanted to see Susan and also demanded that he be given transportation and money. This situation lasted up to about 12:00 noon with the policemen surrounding the accused and Yvonne about 15 meters away. After being given some food to partake, the barrio captain arrived and he was able to take hold of the accused and subdue hint him. Yvonne, because of the traumatic experience she was subjected to, lost consciousness and was brought to the hospital. Her fingers suffered injuries, abrasion on her neck and a small wound on her stomach. On the other hand, the accused averred that Susan Baylon was his wife. Although they were not legally married they had been living together for sometime in her family house at Tayuman. Sometime in August 1979, he quarelled with Susan about her relatives. He told Susan that he could no longer live with them and that they better separate from her sister, Yvonne, and brothers. Thereafter, while he remained upstairs in the house, Susan went down when Yvonne invited her to eat. When Susan did not return, he went down and inquired from Yvonne where Susan had gone. Yvonne replied that she did not know and he told her that Susan had left without telling him

where she was going. He then went out of the house, looked for Susan and inquired from their neighbors and relatives about her whereabouts. When he returned to the house unsuccessful in his search, he found his clothes already placed in a box near the doorway. Yvonne, who was standing near the door, then told him to leave the house and he did so after thanking her for his stay. On September 2, 1979, at about 8:30 in the morning he saw Yvonne sitting on a bench inside a store located at Tayuman. Yvonne at the tune was holding a knife and was about to stab him from behind. Because a friend was able to warn him he immediately grabbed the knife from the hand of Yvonne and succeeded in doing so. When he asked Yvonne why she wanted to stab him she replied that Susan complained to her. It was while he was in the act of holding Yvonne and pointing the knife on her chest when the barrio captain and the policemen arrived who thought that he was going to stab Yvonne. He was asked by the barangay captain what he wanted from Yvonne and he replied that he just wanted Susan produced because he wanted to talk to her. He also asked the barangay captain for a vehicle but he did not ask for any money. When he lost the knife, the people ganged up on him. (pp. 4143, Rollo) Appellant claims that the lower court erred (1) in not ruling that his guilt has not been proven; (2) in convicting him of kidnapping and serious illegal detention; (3) in not crediting him with the mitigating circumstance of passion or obfuscation; and (4) in not crediting him with the period of his preventive detention. The elements of the crime of illegal detention, as defined in Article 267 of the Revised Penal Code, are: (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; and (4) in the commission of the offense, any of the following circumstances is present: (a) that the kidnapping or detention last for more than 5 days; or (b) that it is committed simulating public authority; or (c) that any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) that the person kidnapped or detained is a minor, female, or a public officer. (Reyes, Revised Penal Code 1975 Revised Edition, Book 11, page 468) The issue in this review of the aforesaid judgment revolves around the credibility of witnesses, i.e., whether or not the trial court was correct in giving more weight to the testimonies of the prosecution witnesses than to that of the testimony of appellant, in finding him guilty of the offense charged and, in sentencing him to reclusion perpetua. In the matter of credibility of witnesses, the rule is now settled that "... [u]nless there is a showing that the trial court had overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have affected the result of the case, the appellate court will not disturb the factual findings of the lower court. For, having had the opportunity of observing the demeanor and behavior of the witnesses while testifying, the trial court, more than the reviewing tribunal, is in a better position to gauge their credibility, and properly appreciate the relative weight of the often conflicting evidence for both parties." (People vs. Ablaza, 30 SCRA 173,176) In the case at bar, We find no justification to overturn the judgment of the trial court giving credence to the declarations of five (5) witnesses, three (3) of whom are

policemen who did not know appellant before the incident. The records of the case are convincing enough that Mercado forcibly brought Yvonne from place to place so that the latter would reveal the whereabouts of Susan, his common-lawwife. For almost five (5) hours, he held Yvonne in a store before he was subdued. Pictures of the incident (Exhibits D, D-1 to D-4) clearly show appellant's hand around the neck of complainant, with a knife poked at it. On the other hand, as correctly observed by the trial court, "[i]f it was true that it was the complainant who tried to stab the accused and it was the latter who succeeded in subduing the complainant, the incident would not have lasted several hours and attracted a throng of onlookers and policemen." (p. 43, Rollo) The argument advanced by the defense that appellant should be convicted of grave coercion only since his purpose was "to force Miss Yvonne Baylon to produce Miss Susan Baylon" (p. 38, Rollo), is without merit. In the Ablaza case (supra), "the victim was actually restrained or deprived of her freedom, and that makes proper the prosecution of the herein accused under Article 267 of the Revised Penal Code. The surrounding circumstances make it clear that the main purpose of Annabelle's detention was to coerce her into withdrawing her previous charges against appellant Ablaza, thus obstructing the administration of justice." (p. 178, Ibid) The extant evidence on record shows that "the accused held complainant because he wanted her to produce her sister, Susan, who was the common-law wife of the accused." (p. 44, Rollo) The mitigating circumstance of obfuscation arising from the desire to compel Susan to live with him cannot be invoked in favor of the accused whose relationship with her was illegitimate. The obfuscation must arise from lawful sentiments. We agree, however, with appellant that he should be credited with the period of his preventive detention. He has been detained since September 2, 1979 and, therefore, in accordance with Article 29 of the Revised Penal Code, the

period of his preventive detention should be deducted from the term of his sentence. WHEREFORE, the decision appealed from is AFFIRMED, with costs. Appellant should be credited with the full time of his preventive imprisonment upon a showing that he agreed to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, he shall be credited with four-fifths (4/5) of the time of such preventive imprisonment. SO ORDERED. Teehankee, Actg. C.J., (Chairman), Melencio-Herrera, Plana, Gutierrez, Jr. and De la Fuente, J., concur.

G.R. No. 84048 February 15, 1990 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LETICIA SANIDAD DE DEL SOCORRO, defendantappellant. The Office of the Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for defendant-appellant.

PADILLA, J.: In an Information docketed as Criminal Case No. 57828 of the Regional Trial Court of Pasig, Metro Manila, Leticia Sanidad de Del Socorro was charged with the crime of Kidnapping committed as follows: That on or about the 11th day of February, 1984, in the Municipality of Mandaluyong, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there wilfully, unlawfully and feloniously kidnap one CLAIRE SANCHEZ, a minor below seven (7) years old, for the purpose of permanently separating said child from EVELYN SANCHEZ y TEJERO and ANTONIO SANCHEZ parents of the said child and thereafter sold to one DRA. APOLONIA VILLAMAYOR, in the amount of P700.00. The defendant was duly arrested and brought before the court. When arraigned, she pleaded "not guilty" to the crime charged in the Information. She was placed on trial and after hearing the evidence adduced during the trial, Judge

Domingo R. Garcia found the defendant guilty of the crime charged in the Information and sentenced her to suffer the penalty of reclusion perpetua, with the accessory penalties provided for by law, without pronouncement as to costs. From this sentence, the defendant has appealed to this Court. The evidence for the prosecution shows that between 10:00 o'clock and 11:00 o'clock in the morning of 11 February 1984, while Evelyn Sanchez was in her residence at No. 162 Kalentong St., Mandaluyong, Metro Manila, cooking food for lunch, her four-year old daughter named Claire Sanchez went out of the house to play with other children. After she had finished cooking, Evelyn called her child to get inside and eat her lunch. Receiving no response, she went out of the house and looked for her child in the neighborhood. But the child was nowhere to be found. She inquired from the other children who were playing where her daughter Claire was and she was informed that Claire was taken by a woman whom the children thought was the aunt of Claire. She was also informed that her child had resisted in going with the woman and cried for her mother, but the woman carried the child and got on board a jeepney and left the place. The disappearance of Claire Sanchez was, consequently, reported to the Mandaluyong police. 1 Several days after the disappearance of the cold, the distraught mother was informed by a relative that a certain doctor in Angono, Rizal, had bought a child who fitted the description of her daughter, Claire. 2 Forthwith, she went to Angono, Rizal and with some town policemen, went to see the lady physician, one Dr. Villamayor, who told the policemen that she had given the child to her aunt whose house was at E. de la Paz Street. The child was then taken from the aunt of the doctor and brought to the municipal building of Angono where she was re-united with her mother. The lady physician advised the mother and the policemen however, not to leave immediately as the woman who brought the child to her was coming back on that day to collect some money. 3

The lady physician, Dr. Apolonia Merced Villamayor, declared that at about 10:30 o'clock in the evening of 11 February 1984, a woman, whom she later identified to be the accused, Leticia Sanidad de Del Socorro, came to her clinic at No. 91 Int. Quezon Ave., Angono, Rizal, with a baby girl. She asked the accused what was wrong with the child and the accused answered that nothing was wrong with the child but that she wanted the lady physician to take care of the child, whom she referred to as her daughter, because her husband had died just two (2) months ago and she could not afford to feed her brood of four (4) girls and two (2) boys. The accused also asked for the amount of P700.00, as a "donation to enable her to open a small sari-sari store. Feeling pity and compassion for the child, she gave the accused P400.00 which she had at the time, and told her to come back the following Saturday for the balance. After the accused had left, she gave the child to her spinster aunt, Lourdes Saguinsin, who lived in E. de la Paz St., Angono, Rizal. The following Saturday, two (2) policemen from Angono, Rizal, came to her clinic and inquired if she had seen a girl of about four (4) years of age. She told the policemen that a child was given to her for adoption the previous Saturday, and that she gave the child to her aunt Lourdes. She also told the policemen that the woman who brought the child to her was coming back that day to collect the balance of P300.00. She asked them to wait for her. At about 10:00 o'clock in the evening, sure enough the accused came back to the clinic. Dr. Villamayor pointed out the accused to the policemen who then arrested her and brought her to the municipal building for investigation. 4 The accused admitted having brought the child, Claire Sanchez, to Dr. Villamayor in Angono, Rizal. But she denied having kidnapped the child or having sold her to the doctor. Her version of the incident, as testified to by her in court, is that at about 11:00 o'clock in the morning of 11 February 1984, while she was on her way home to the Javier Compound, San Francisco Village, Muzon, Taytay, Rizal, she saw the child, Claire, standing on the sidewalk in front of the

Jose Rizal College in Mandaluyong. The child was crying and when she asked why, the child told her that two (2) children had quarelled with her. The child also told her that her lola had refused to take her along. She asked the child where she was living, but the child did not point to any particular place or direction. Out of pity for the child, she brought the child along with her. They waited for a bus for Angono, Rizal, and upon reaching Angono, she entrusted the child to Dr. Villamayor for safekeeping. She denied having asked or received money from Dr. Villamayor. 5 In this appeal, the defendant-appellant, through counsel, raises mainly the question of credibility of witnesses. Defendant-appellant assails the trial court for giving weight and credence to the testimony of the witnesses for the prosecution despite the contradictions and inconsistencies in their testimony which would render them doubtful and unreliable. We find, however, that the variance between the testimony of the prosecution witnesses in court and their sworn statements, as well as the alleged contradictions and inconsistencies pointed out by the appellant in her Brief, are not substantial as to destroy their credibility. The alleged variance refers to minor details which would tend to show the sincerity of the witnesses and the absence of connivance between them. Besides, the testimony of the witnesses for the prosecution, unlike the denial of the defendant-appellant, appears to be consistent with the truth and the natural course of things. Furthermore, these witnesses had no motive to falsify the truth and impute to the defendant-appellant, whom they met only on the occasion complained of, the commission of so grave an offense as kidnapping of a minor child. The claim of the defendant-appellant that the child, Claire Sanchez, went voluntarily with her, cannot be given credence. Evelyn Sanchez, the mother of the child, Claire, declared that when she asked her daughter upon their reunion if she went voluntarily with the defendant-appellant,

the child answered that she did not. Evelyn further declared that when she asked the children in the neighborhood, with whom her daughter was playing, if Claire had resisted, the children answered that Claire had resisted, so that the accused had to carry her to the jeep. 6 Besides, the defendant-appellant herself testified that when she picked up the child in Mandaluyong, her only thought was to bring the child to Dr. Villamayor in Angono, Rizal. 7 She did not bring the child to her (defendant's) own home in Muzon, Taytay, Rizal even if this place is nearer than Angono, because, according to the defendant, she already has many children of her own and they have no food to eat. 8 But if she really pitied the child whom she described as crying on the sidewalk, why, it can be asked, did she not bring her to the nearest police station in Mandaluyong And, why did she think only of Dr. Villamayor who, according to her, she did not even know personally, but only in name? 9Her explanation is as follows: Q Why of all people in the Philippines in general Taytay and Angono in particular, why do you have to entrust this child to Dr. Villamayor? A Because I trusted Dr. Villamayor in the same manner that she trusted me and I know where we will give the child. 10 Is it possible then that the defendant-appellant went directly to Dr. Villamayor because of the common knowledge in the neighborhood that her spinster aunt wanted to adopt the child? 11 One, of course, can only surmise. To cut down the illicit traffic of children, we urge the prosecution of persons to whom children are sold or given away for a valuable consideration. Oftentimes, it is only the abductor or kidnapper who is prosecuted. Yet, the person to whom the kidnapped child is given and who may have

wittingly or unwittingly given the motivation for the abduction, goes scot-free, even as the intention of this person is to keep and raise the child as his own. By keeping the child, under these circumstances, is he not guilty of serious illegal detention? Back to the case at bar, it is our opinion, and we so hold, that the evidence adduced during the trial is sufficient to justify the conclusions of the trial court. Therefore, the judgment of the trial court should be affirmed. WHEREFORE, the judgment appealed from is hereby AFFIRMED, without pronouncement as to costs. SO ORDERED. Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

October 22, 1992 G.R. No. 75954 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial Court, Branch 52, Manila, and K.T. LIM alias MARIANO LIM, respondents. BELLOSILLO, J , J.: Failing in his argument that B.P. 22, otherwise known as the Bouncing Check Law, is unconstitutional, 1 private respondent now argues that the check he issued, a memorandum check, is in the nature of a promissory note, hence, outside the purview of the statute. Here, his argument must also fail. The facts are simple. Private respondent K.T. Lim was charged before respondent court with violation of B.P. 22 in an Information alleging That on . . . January 10, 1985, in the City of Manila . . . the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to Fatima Cortez Sasaki . . . Philippine Trust Company Check No. 117383 dated February 9, 1985 . . . in the amount of P143,000.00, . . . well knowing that at the time of issue he . . . did not have sufficient funds in or credit with the drawee bank . . . which check . . . was subsequently dishonored by the drawee bank

for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to pay said Fatima Cortez Sasaki the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. 2 On 18 July 1986, private respondent moved to quash the Information of the ground that the facts charged did not constitute a felony as B.P. 22 was unconstitutional and that the check he issued was a memorandum check which was in the nature of a promissory note, perforce, civil in nature. On 1 September 1986, respondent judge, ruling that B.P. 22 on which the Information was based was unconstitutional, issued the questioned Order quashing the Information. Hence, this petition for review on certiorari filed by the Solicitor General in behalf of the government. Since the constitutionality of the Bouncing Check Law has already been sustained by this Court in Lozano v. Martinez 3 and the seven (7) other cases decided jointly with it, 4 the remaining issue, as aptly stated by private respondent in his Memorandum, is whether a memorandum check issued postdated in partial payment of a pre-existing obligation is within the coverage of B.P. 22. Citing U.S. v. Isham, 5 private respondent contends that although a memorandum check may not differ in form and appearance from an ordinary check, such a check is given by the drawer to the payee more in the nature of memorandum of indebtedness and, should be sued upon in a civil action. We are not persuaded. A memorandum check is in the form of an ordinary check, with the word memorandum, memo or mem written across its face, signifying that the maker or drawer engages to pay the bona fide holder absolutely, without any condition concerning its presentment. 6 Such a check is an evidence of debt against the drawer, and although may not be intended to be presented, 7 has the same effect as an ordinary check,

8 and if passed to the third person, will be valid in his hands like any other check. 9 From the above definition, it is clear that a memorandum check, which is in the form of an ordinary check, is still drawn on a bank and should therefore be distinguished from a promissory note, which is but a mere promise to pay. If private respondent seeks to equate memorandum check with promissory note, as he does to skirt the provisions of B.P. 22, he could very well have issued a promissory note, and this would be have exempted him form the coverage of the law. In the business community a promissory note, certainly, has less impact and persuadability than a check. Verily, a memorandum check comes within the meaning of Sec. 185 of the Negotiable Instruments Law which defines a check as a bill of exchange drawn on a bank payable on demand. A check is also defined as [a] written order or request to a bank or persons carrying on the business of banking, by a party having money in their hands, desiring them to pay, on presentment, to a person therein named or bearer, or to such person or order, a named sum of money, citing 2 Dan. Neg. Inst. 528; Blair v. Wilson, 28 Gratt.(Va.) 170; Deener v. Brown, 1 MacArth.(D.C.) 350; In re Brown, 2 Sto. 502, Fed. Cas. No. 1,985. See Chapman v. White, 6 N.Y. 412, 57 Am. Dec 464. 10 Another definition of check is that is [a] draft drawn upon a bank and payable on demand, signed by the maker or drawer, containing an unconditional promise to pay a sum certain in money to the order of the payee, citing State v. Perrigoue, 81 Wash, 2d 640, 503 p. 2d 1063, 1066. 11 A memorandum check must therefore fall within the ambit of B.P. 22 which does not distinguish but merely provides that [a]ny person who makes or draws and issues any check knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank . . . which check is subsequently dishonored . . . shall be punished by imprisonment . . . (Emphasis supplied ). 12 Ubi lex no distinguit nec nos distinguere debemus.

But even if We retrace the enactment of the Bouncing Check Law to determine the parameters of the concept of check, We can easily glean that the members of the then Batasang Pambansa intended it to be comprehensive as to include all checks drawn against banks. This was particularly the ratiocination of Mar. Estelito P. Mendoza, co-sponsor of Cabinet Bill No. 9 which later became B.P. 22, when in response to the interpellation of Mr. Januario T. Seo, Mr. Mendoza explained that the draft or order must be addressed to a bank or depository, 13 and accepted the proposed amendment of Messrs. Antonio P. Roman and Arturo M. Tolentino that the words draft or order, and certain terms which technically meant promissory notes, wherever they were found in the text of the bill, should be deleted since the bill was mainly directed against the pernicious practice of issuing checks with insufficient or no funds, and not to drafts which were not drawn against banks. 14 A memorandum check, upon presentment, is generally accepted by the bank. Hence it does not matter whether the check issued is in the nature of a memorandum as evidence of indebtedness or whether it was issued is partial fulfillment of a pre-existing obligation, for what the law punishes is the issuance itself of a bouncing check 15 and not the purpose for which it was issuance. The mere act of issuing a worthless check, whether as a deposit, as a guarantee, or even as an evidence of a pre-existing debt, is malum prohibitum. 16 We are not unaware that a memorandum check may carry with it the understanding that it is not be presented at the bank but will be redeemed by the maker himself when the loan fall due. This understanding may be manifested by writing across the check Memorandum, Memo or Mem. However, with the promulgation of B.P. 22, such understanding or private arrangement may no longer prevail to exempt it from penal sanction imposed by the law. To require that the agreement surrounding the issuance of check be first looked into and thereafter exempt such issuance from the punitive provision of B.P. 22 on the basis of such agreement or understanding would frustrate the very purpose for which the law was enacted to stem the proliferation of unfunded checks. After having effectively

reduced the incidence of worthless checks changing hands, the country will once again experience the limitless circulation of bouncing checks in the guise of memorandum checks if such checks will be considered exempt from the operation of B.P. 22. It is common practice in commercial transactions to require debtors to issue checks on which creditors must rely as guarantee of payment. To determine the reasons for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public responses in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. 17 WHEREFORE, the petition is GRANTED and the Order of respondent Judge of 1 September 1986 is SET ASIDE. Consequently, respondent Judge, or whoever presides over the Regional Trial Court of Manila, Branch 52, is hereby directed forthwith to proceed with the hearing of the case until terminated. SO ORDERED. Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon, Bellosillo and Melo, JJ., concur. Narvasa, C.J., is on leave.

G.R. No. 102645. April 7, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO PADICA y LORICA, LESLIE GANS y MELENDRES, FLORENTINO FABRIGAS, ROMEO PRADEZ, LEONARDO MARAJAS, LEOPOLDO MARAJAS and LEON MARAJAS, JR. y RAMOS, ** accused. LEON MARAJAS, JR. y RAMOS, accused-appellant. The Solicitor General for plaintiff-appellee. Angara, Abello, Concepcion, Regala & Cruz for accusedappellant. SYLLABUS 1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; UNINHABITED PLACE; PRESENT WHERE ACCUSED DELIBERATELY CHOSE DESOLUTION OF PLACE TO PERPETRATE CRIME FAR FROM GAZE OF POTENTIAL EYEWITNESSES; APPRECIATED THOUGH NOT ALLEGED IN INFORMATION. Although the trial court and both parties herein have again passed sub silentio thereon, it is evident that the aggravating circumstance of uninhabited place was present since appellant and his co-accused obviously and deliberately chose the desolation and isolation of the sugarcane plantation to perpetrate the crime far from the gaze of potential eyewitnesses. This circumstance is underscored by the fact that they committed the crime at about 12:00 noon, a time of day when any passersby or assistance could hardly be expected in the vicinity of the locus criminis. This aggravating circumstance of despoblado should, therefore, be considered against appellant even if it was not alleged in the informations since it was duly proved.

2. ID.; ID.; ABUSE OF SUPERIOR STRENGTH; PRESENT WHERE ACCUSED DELIBERATELY RESORTED TO COLLECTIVE STRENGTH IN OVERPOWERING VICTIM'S DEFENSE. Abuse of superior strength was likewise present, for the accused deliberately resorted to their collective strength for the purpose of overpowering whatever feeble defense the poor Francis Banaga could offer. They thus insured the commission of the crime with practically no risk at all to themselves. 3. ID.; ID.; TREACHERY; PRESENT WHERE ASSAULT IS SUDDEN AND UNEXPECTED AND VICTIM DIVESTED OF OPPORTUNITY TO EFFECTIVITY RESIST OR ESCAPE. There was treachery since, under the aforestated circumstances, the victim was lured by his killers into going with them to Laguna without the slightest inkling of their nefarious design, coupled with the sudden and unexpected assault by the malefactors on the hapless victim in the isolated sugarcane plantation in Calamba, which thereby divested him of an opportunity either to effectively resist or to escape. 4. ID.; ID.; ABUSE OF SUPERIOR STRENGTH AND CRAFT ABSORBED IN TREACHERY. Under the factual features present in the commission of the crime, however, we are inclined to grant that the circumstance of superior strength should not be appreciated distinctly but should be considered as being absorbed in and by treachery, and the same is true with regard to the allegation of craft. Hence, abuse of superior strength may not be taken into account separately in this case, either as a qualifying or as an aggravating circumstance. 5. ID.; MURDER; WHERE TAKING OF VICTIM FROM ONE PLACE TO ANOTHER INCIDENTAL TO BASIC PURPOSE TO KILL CRIME IS MURDER; NOT CONVERTED TO KIDNAPPING BY DEMAND FOR RANSOM WHERE VICTIM NOT DETAINED OR DEPRIVED OF LIBERTY. We have consistently held that where the taking of the victim was incidental to the basic purpose to kill, the crime is only murder, and this is true even if, before the killing but for purposes thereof, the victim was taken from one place to another. Thus, where the evident purpose

of taking the victims was to kill them, and from the acts of the accused it cannot be inferred that the latter's purpose was actually to detain or deprive the victims of their liberty, the subsequent killing of the victims constitute the crime of murder, hence the crime of kidnapping does not exist and cannot be considered as a component felony to produce a complex crime of kidnapping with murder. In fact, as we held in the aforecited case of Masilang, et al., although the accused had planned to kidnap the victim for ransom but they first killed him and it was only later that they demanded and obtained the money, such demand for ransom did not convert the crime into kidnapping since no detention or deprivation of liberty was involved, hence the crime committed was only murder. That from the beginning of their criminal venture appellant and his bothers intended to kill the victim can readily be deduced from the manner by which they swiftly and cold-bloodedly snuffed out his life once they reached the isolated sugarcane plantation in Calamba, Laguna. Furthermore, there was no evidence whatsoever to show or from which it can be inferred that from the outset the killers of the victim intended to exchange his freedom for ransom money. On the contrary, the demand for ransom appears to have arisen and was consequently made as an afterthought, as it was relayed to the victim's family very much later that afternoon after a sufficient interval for consultation and deliberation among the felons who had killed the victim around five hours earlier. 6. ID.; KIDNAPPING; ESSENTIAL ELEMENT THEREOF; CASE AT BAR. The essential element in the crime of kidnapping that the victim must have been restrained or deprived of his liberty, or that he was transported away against his will with the primary or original intent to effect that restraint, is absent in this case. The malefactors evidently had only murder in their hearts when they invited the trusting Francis Banaga to go with them to Laguna, and not to confine or detain him for any length of time or for any other purpose. 7. ID.; ID.; IMPOSABLE PENALTY RAISED TO DEATH WHERE CRIME PERPETRATED FOR RANSOM; CURTAILMENT OF FREEDOM OF MOVEMENT WITHOUT DETERMINANT INTENT AND DEPRIVATION OF LIBERTY FOR APPRECIABLE PERIOD OF

TIME CONSTITUTE COERCION. Under Article 267 of the Revised Penal Code, the circumstance that the kidnapping is perpetrated for the purpose of ransom raises the imposable penalty to death. It is essential, however, that the element of deprivation or restraint of liberty of the victim be present. The fact alone that ransom money is demanded would not per se qualify the act of preventing the liberty of movement of the victim into the crime of kidnapping, unless the victim is actually restrained or deprived of his liberty for some appreciable period of time or that such restraint was the basic intent of the accused. Absent such determinant intent and duration of restraint, the mere curtailment of freedom of movement would at most constitute coercion. 8. REMEDIAL LAW; CRIMINAL PROCEDURE; NAME OF ACCUSED BE SUFFICIENTLY ALLEGED IN THE COMPLAINT OR INFORMATION; CONSEQUENCE OF FAILURE TO COMPLY THEREWITH; TEST OF SUFFICIENCY. The rule is that the complaint or information should sufficiently allege the name of the accused, failing which the complaint or information would be rendered invalid. The test of sufficiency is laid down in Section 7, Rule 110 of the Rules of Court, which states: "Sec. 7. Name of the accused. A complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known, or if his name cannot be discovered he must be described under a fictitious name with a statement that his true name is unknown. If in the course of the proceeding the true name of the accused is disclosed by him, or appears in some other manner to the court, the true name of the accused shall be inserted in the complaint or information and record." 9. ID.; ID.; AMENDMENT OF COMPLAINT OR INFORMATION; INSERTION OF ACCUSED'S TRUE NAME IN INFORMATION A FORMAL AMENDMENT. The subsequent amendment to insert in the information Leon Marajas, Jr.'s real name involved merely a matter of form as it did not, in any way, deprive appellant of a fair opportunity to present his defense. Moreover, the amendment neither affected nor altered the nature of the offense charged since the basic theory of the prosecution was not changed nor did it introduce new and material facts. Such an amendment is explicitly allowed

under the second paragraph of Section 7, in relation to Section 14, Rule 110 of the Rules of Court, the pertinent portion of which provides that "(t)he information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused." At any rate, whatever irregularity may have attended the inclusion of appellant's name as an accused in the amended information has been waived by his subsequent appearance and entry of plea at his arraignment under said amendatory information. 10. ID.; ID.; MOTION TO QUASH; ERROR AS TO IDENTITY PROPERLY RAISED IN MOTION TO QUASH ON GROUND OF LACK OF JURISDICTION OVER ACCUSED'S PERSON; CONSEQUENCE OF FAILURE TO RAISE QUESTION OF IDENTITY. In the case at bar, there is no dispute that appellant was arraigned under the original information and that he entered thereto a plea of not guilty under the name of "Leonardo Marajas." At that juncture, appellant should have raised the error as to his identity by filing a motion to quash on the ground of lack of jurisdiction over his person, in line with the doctrine explained in People vs. Narvaes laid down as early as 1934. But, as aforestated, appellant did not do so but instead voluntarily appeared at the arraignment and pleaded not guilty thereat, albeit under the different name. Consequently, the trial court acquired jurisdiction over his person and it could have rendered a valid judgment of conviction based on the original information even without need of an amendatory information to correct appellant's name. What we stated in Narvaes is worth repeating: "x x x (w)hen the appellant was arraigned under the name of Pedro Narvaes, which is the name appearing in the information, he merely entered his plea of 'not guilty' under the said name. It was on that occasion that he should have for the first time raised the question of his identity, by filing a demurrer based on the court's lack of jurisdiction over his person, inasmuch as he was then considered as Pedro Narvaes, not Primo Narvaes. Not having filed the said demurrer, it must necessarily be understood that he renounced it and therefore he is now estopped from raising, or insisting to raise, the

same question, not only in this appeal but even at the trial . . ." 11. ID.; ID.; DISCHARGE OF ACCUSED TO BE STATE WITNESS; LIES WITHIN COURT'S SOUND DISCRETION; COURT NOT REQUIRED TO BE ABSOLUTELY CERTAIN THAT ALL REQUIREMENTS FOR PROPER DISCHARGE BE PRESENT. Appellant has also clearly lost sight of the rule that the discharge of an accused to be a state witness, lies within the sound discretion of the court before whom it is sought and in the exercise of that discretion, it is not required that the court be absolutely certain that all the requirements for the proper discharge of a co-accused be present. In the case under consideration, the prosecution presented enough evidence to support its motion for the discharge of Padica. The trial court's reliance thereon and its consequent finding on the basis thereof that Padica did not appear to be the most guilty must be respected as it was in better position to evaluate such evidence. 12. ID.; EVIDENCE; ALIBI; WEAK DEFENSE CLEARLY NEGATIVE IN NATURE; CANNOT PREVAIL AGAINST POSITIVE DECLARATIONS OF PROSECUTION WITNESSES; WHEN DEFENSE OF ALIBI MAY PROSPER. Appellant's defense that he was in another place at the time of Francis Banaga's disappearance and killing must necessarily fail. Indeed, trite as our innumerable reiterations have already made this statement of rejection, we must perforce again reprobate appellant's alibi as an inherently weak defense decidedly easy of concoction. Apart from that, it is considered as clearly negative in nature. Hence, when arrayed against the positive declarations of the witnesses for the prosecution, the same would all the more be given little consideration. For it to prosper, it must be shown that not only was the accused at some other place at the time of the commission of the offense, but that it was also physically impossible for him to have been there when it happened. Indeed, as correctly pointed out by the trial court in its decision, appellant was not even sure as to his whereabouts on February 8, 1978. He simply offered as an explanation therefor that he was "more or less" in Batangas, which allegation was completely uncorroborated.

13. ID.; ID.; TESTIMONY OF PARTICEPS CRIMINIS VIEWED WITH CAUTION; CASE AT BAR. It is true that the testimony of a particeps criminis is to be invariably viewed with much caution, coming as it does from a polluted source. However, in the case at bar and after a careful evaluation, we find no plausible reason to depart from the favorable appreciation by the trial court of Padica's testimony which the said court characterized as reasonable and probable, given in a clear, straightforward and convincing manner thereby leaving no doubt in the mind of said court that he was telling the truth. 14. ID.; ID.; CREDIBILITY OF WITNESSES; TRIAL COURT'S FINDINGS ACCORDED FINALITY BY APPELLATE COURTS. Jurisprudentially embedded is the rule that the stamp of approval given by the trial court on the testimony of a particular witness as a consequence of its factual findings is normally accorded finality by appellate courts, the court below having had the opportunity to observe closely the manner by which such witness testified. Furthermore, not a single shred of evidence was introduced by the defense to show any ill motive on the part of Padica to impute such a serious crime on appellant and his brothers, thus entitling to considerable credit his testimony regarding the circumstances surrounding Francis Banaga's death. These conclusions we confirm, not by mere reliance on dicta, but from our own review and calibration of the evidence. DECISION REGALADO, J p: Accused-appellant Leon Marajas, Jr. y Ramos appeals from the judgment of the Regional Trial Court of Pasay City, Branch CXVI, dated January 8, 1990, finding him guilty beyond reasonable doubt of the crime of Kidnapping for ransom with murder upon an amended information dated November 16, 1984 and reading as follows: "That on or about the 8th day of February, 1978, in the Municipality of Paraaque, Metro Manila, Philippines, within the jurisdiction of this Honorable Court, the above-named

accused, conspiring, confederating together with John Doe @ Boy Taga, Peter Doe @ Eddie Boy Marajas, Richard Doe @ Tito and Edward Doe @ Elmer whose true names, identities and whereabouts are still unknown and mutually helping and aiding one another, with the use of three (3) firearms with the different caliber (sic) by means of craft, violence against and intimidation of person, did then and there kidnap Francis Banaga, detain and deprive him of his liberty for a period of three (3) days and demanded (sic) five hundred thousand pesos (P500,000.00) for his release and while thus illegally detaining the latter, said accused, pursuant to said conspiracy did then and there wilfully, unlawfully and feloniously, with intent to kill and with treachery shoot Francis Banaga, thereby inflicting on him gunshot wounds on the head and other parts of his body which caused his instantaneous death as a consequences." 1 The records show that Leon Marajas, Jr., Romeo Padica, Leslie Gans, Florentino Fabrigas, Romeo Pradez, Leonardo Marajas and Leopoldo Marajas were originally charged in the latter part of 1978 with kidnapping for ransom with murder and illegal possession of firearms before Military Commission No. 27 in Criminal Case No 27-163 thereof. However, on January 11, 1979, counsel for accused Leon Marajas, Jr. prayed for the transfer of the case to the civil courts. 2 On August 17, 1981, the Office of the Provincial Fiscal of Rizal filed an information for kidnapping for ransom with murder, docketed as Criminal Case No. Pq-81-1596-P, before Branch III of the then Court of First Instance of Pasay City against the aforementioned accused, but with the exception of herein appellant whose name was inadvertently not included therein. 3 A separate charge for illegal possession of firearms was lodged before Branch 146 of the Makati Regional Trial Court but the case was later placed in the archives some time in 1985. 4 Accused Romeo Padica and herein appellant were both arraigned on January 15, 1982 and, with the assistance of their respective counsel, both pleaded not guilty. 5 It appears, however, that appellant entered his plea during the

arraignment under the name of "Leonardo Marajas." 6 Trial thereafter ensued but, subsequently, the case was reraffled to Branch CXVI, Pasay City, of the Regional Trial Court where it remained until the conclusion of the trial in 1990. Earlier thereto, however, upon discovery of the omission of herein appellant's name in the original information, the prosecution filed a motion on November 16, 1984 for the admission of an amended information including appellant's name as one of the accused. 7 On May 30, 1985, the trial court issued an order admitting the amended information. 8 Thereafter, or on July 17, 1985, appellant, duly assisted by counsel, entered a plea of guilty upon being arraigned on the amended information. 9 On the other hand, in an order dated August 27, 1985, 10 accused Padica was discharged from the information to be utilized as a state witness. The People's brief, drawing principally from the factual findings of the court a quo based on the evidence adduced in this case, with supplemental data and documentation of the testimonial evidence as borne out by the transcripts, which we find to be correct, presented the prosecution's case in this wise: "On or about 9:00 o clock in the morning of February 8, 1978, appellant and his brother, Leopoldo Marajas, using a car driven by Leopoldo, visited Romeo Padica in his house in Muntinlupa, Metro Manila. Leopoldo requested Padica, his compadre, to drive for Eddie Boy Marajas, a brother of Leopoldo and appellant, and his classmates, giving Padica P100.00 for the purpose. Upon receiving the amount, Padica, pursuant to the instructions of Leopoldo, drove the car, with Leopoldo and appellant on board, and proceeded to Samson Tech in Pasay City, arriving there at about 10:00 A.M. Leopoldo left the vehicle and, upon coming back after a while, he told Padica that they were going to Sukat, Paraaque. In Sukat, the three stopped at a restaurant when (sic) they ordered something to eat (TSN, November 17, 1988, pp. 6-10).

"Thereafter, with Padica still driving the car, they proceeded to the Superville Subdivision, also in Sukat, where they arrived at about 11:30 A.M. of the same date. Eddie Boy Marajas and Francis Banaga, both fourteen (14) years of age, more or less, were in said subdivision. Leopoldo alighted from the car and talked to them. Subsequently, Leopoldo together with Francis and Eddie Boy, boarded the car. All of them proceeded to Calamba, Laguna, with Padica still driving the vehicle. Seated beside Padica was Leopoldo Marajas, while appellant and Eddie Boy occupied the back seat, with Francis Banaga between them (Ibid, pp.-10-13). "Upon reaching Calamba at about 12:00 noon of the same date, Leopoldo Marajas told Padica, to drive the car into the sugarcane plantation at the side of the road. Once inside the plantation, Padica stopped the car when told to do so by Leopoldo, who then alighted from the vehicle and told Francis Banaga to alight. However, Francis refused to get down from the car. Notwithstanding his resistance, he was forced out of the car by Leopoldo Marajas, Eddie Boy and appellant, who pulled him out of the vehicle. Thereafter, the three brought Francis Banaga to a place inside the sugarcane plantation, more or less ten (10) meters away from the car, while Padica remained in the vehicle. Leopoldo Marajas then delivered several stabbing blows at Banaga after which appellant shot Banaga with a handgun. Banaga fell on the ground. Leopoldo, Eddie Boy and appellant returned to the car. Leopoldo took the wheel from Padica and drove the car to Muntinlupa, where Padica alighted and was left behind with Leopoldo warning Padica, 'Pare, steady ka lang, isang bala ka lang.' (Ibid., pp. 10-19). "On or about 5:00 P.M. of the same day, while in his house at Gatchalian Subdivision in Paraaque, Tomas Banaga, father of Francis, became alarmed when his son failed to come home. A few minutes after 6:00 P.M. of (the) same date, someone called up by phone, telling Tomas not to look for his son as he was in good condition, and demanding P500,000.00 for his (Francis') release. Tomas reported the incident to the Philippine Constabulary authorities in Camp Crame, Quezon City. Sgt. Rodolfo Bucao, Sgt. Villanueva and

Sgt. Cierlito were dispatched to the Banaga residence (TSN, January 15, 1982, pp. 4-6). "On February 9, 1978, Tomas received a second phone call in the course of which the caller reduced the amount demanded to P200,000.00. On February 10, 1978, there was another phone call with (the) caller lowering the amount to P23,000.00 and giving instructions that the money be wrapped in a newspaper, placed in a paper bag, and delivered by a girl wearing a T-shirt to Luneta, in front of the National Library, under a true with red flowers, at 8:30 P.M. of February 10, 1978 (Ibid., pp. 6-10). "Norma Camello, sister-in-law of Tomas Banaga, volunteered to deliver the money as the maid of (the) Banaga family who was supposed to do it was scared. Between 7:00 and 7:30 P.M. of February 10, 1978, Camello was brought by Sgt. Bucao and CIC Ocampo in front of Bayview Hotel at Roxas Blvd., Manila. At about 8:00 P.M. of the same date, she went to the National Library at Luneta and positioned herself under a tree with red flowers, pursuant to the instructions of the caller. A few minutes later, a taxicab arrived. Appellant alighted from the vehicle, approached Camello and got the money from her which was in a paper bag, saying: 'Hihintayin na lang ninyo ang bata mamaya sa bahay.' (TSN, Sept. 19, 1985, pp. 6-12). When appellant returned to the waiting taxicab and was about to board it, Sgt. Simplicio Dulay, one of those sent to Luneta to entrap the person who would receive the ransom money, apprehended and arrested appellant (TSN, March 11, 1986, pp. 2-5). "(At) or about 2:00 P.M. of February 11, 1978, pursuant to the information given by appellant during the investigation, a Philippine Constabulary team led by Lt. Napoleon Cachuela, accompanied by appellant, went to Calamba, Laguna search for the body of Francis Banaga. Appellant led the team to the place where the cadaver was dumped, which was inside a sugarcane plantation about 75 meters away from the road. The team recovered the body of Francis Banaga and brought it to the Municipal Health Officer of Calamba for autopsy (TSN, October 2, 1986, pp. 10-17).

"According to the necropsy report of Dr. Eusebio Panganiban of the Calamba Municipal Health Office, Francis Banaga sustained two (2) entry gunshot wounds, one on the head and the other on the chest, with two (2) exit gunshot wounds and several lacerated wounds. The death of Francis was caused by 'intra-thoracic brain hemorrhage due to gunshot wounds.' (TSN, July 25, 1986, pp. 17-69). "After three (3) years in hiding out of fear for his life, Romeo Padica finally revealed to Lt. Cruz (sic) of Regional Security Unit Intelligence Division, Lucena City that he (Padica) witnessed the killing of Francis Banaga. Padica had met Lt. Cruz (sic) near the Lucena City Market and after making the disclosure, surrendered to the authorities (TSN, December 12, 1988, p. 6)." 11 Appellant predictably presented a different narration of the events that led to his arrest. He insists that he was the victim of an elaborate frame-up by the military authorities assigned to investigate the case. Appellant claims that on February 8, 1978, the day that the victim disappeared, he was in Batangas province, where he was a resident. In the early morning of February 10, 1978, he decided to go to Manila, with Sto. Tomas, Batangas as his point of departure, in order to thresh out some financial matters in connection with his business of buy and sell. 12 He arrived in Manila at around 9:00 A.M. and proceeded to the office of Mrs. Aquilina Marquez-Marajas, his sister-in-law, at Mabini Street in Malate to talk to his brother, Leonardo. Not finding Leonardo there, he then went to the house of his sister, Nelly Marajas, a neighbor of the Banaga family, at Gatchalian Subdivision in Paraaque. He was about to board a tricycle at the main gate of the subdivision at around 9:30 A.M. when he was suddenly accosted by two Metrocom officers in civilian clothes who forcibly took him to a car. Appellant was later brought at about 12:00 noon to the Siesta Court Hotel, also in Malate, where he was repeatedly beaten and subjected to torture by his abductors who tried in vain to extract information about the disappearance of Francis Banaga. 13

In the evening of the same day, he was taken out of the hotel and was taken by the men to an unspecified safehouse where, once again, his ordeal at their hands was resumed. Unable to bear the maltreatment any further, appellant then tried to fool them by admitting that the missing Francis Banaga could be found in Paete, Laguna. He then led a group of his captors to the said place but they found no trace of the missing boy. Incensed at the deception, the men took him back to the safehouse. 14 Later, appellant was again taken out of the safehouse and, together with another captive whom he identified only as "Florentino," he was brought to an isolated sugarcane plantation. There Florentino led the military team to the cadaver of Francis Banaga. 15 Appellant and Florentino were later brought back to the safehouse. The former claims that he was kept there for about two months, during which time he helped in the maintenance and care of the safehouse and its surroundings. He also met at the safehouse Leslie Gans, one of the accused, but he had no occasion to discuss their predicament with him. After appellant's confinement, he was turned over to the prison authorities of Bicutan Rehabilitation Center where he remained until the start of the trial. 16 After more than eight years of trial, which for one reason or another was punctuated by numerous and needless postponements, the trial court rendered its assailed decision pronouncing the guilt of appellant for the crime of kidnapping for ransom with murder and sentencing him to suffer the penalty of reclusion perpetua and to pay Tomas Banaga, father of Francis Banaga, the sum of P30,000.00 as indemnity for the death of the child, without pronouncement a to costs. 17 Appellant is now before us insisting on the reversal of the judgment of conviction by theorizing that the court below erred: (a) in ruling that the guilt of appellant was proven beyond reasonable doubt; (b) in giving full credence to the testimony of state witness Romeo Padica; (c) in laying emphasis on the weakness of the defense interposed by

appellant; and (d) in disregarding the inconsistencies raised by the defense as minor and insubstantial. 18 After a careful and exhaustive review of the records, the testimonial and documentary evidence, and the arguments of the prosecution and the defense, we are satisfactorily persuaded that the prosecution has duly discharged its onus probandi insofar as the culpability of appellant is concerned, but we do not adopt as correct the nature or categorization of the offense for which he must do penance. 1. At the outset, from the evidence on record, we are not convinced that the crime of kidnapping for ransom was committed as charged in both the original and amended informations. Rather the crime committed was murder, attended by the qualifying circumstances of treachery and/or abuse of superior strength, and not the complex crime of kidnapping for ransom with murder as found by the trial court without objection by either the prosecution or defense. The essential element in the crime of kidnapping that the victim must have been restrained or deprived of his liberty, 19 or that he was transported away against his will with the primary or original intent to effect that restraint, is absent in this case. The malefactors evidently had only murder in their hearts when they invited the trusting Francis Banaga to go with them to Laguna, and not to confine or detain him for any length of time or for any other purpose. We have consistently held that where the taking of the victim was incidental to the basic purpose to kill, the crime is only murder, 20 and this is true even if, before the killing but for purposes thereof, the victim was taken from one place to another. 21 Thus, where the evident purpose of taking the victims was to kill them, and from the acts of the accused it cannot be inferred that the latter's purpose was actually to detain or deprive the victims of their liberty, the subsequent killing of the victims constitute the crime of murder, 22 hence the crime of kidnapping does not exist and cannot be considered as a component felony to produce a complex crime of kidnapping with murder. In fact, as we held in the aforecited case of Masilang, et al., although the accused had

planned to kidnap the victim for ransom but they first killed him and it was only later that they demanded and obtained the money, such demand for ransom did not convert the crime into kidnapping since no detention or deprivation of liberty was involved, hence the crime committed was only murder. 23 That from the beginning of their criminal venture appellant and his brothers intended to kill the victim can readily be deduced from the manner by which they swiftly and coldbloodedly snuffed out his life once they reached the isolated sugarcane plantation in Calamba, Laguna. Furthermore, there was no evidence whatsoever to show or from which it can be inferred that from the outset the killers of the victim intended to exchange his freedom for ransom money. On the contrary, the demand for ransom appears to have arisen and was consequently made as an afterthought, as it was relayed to the victim's family very much later that afternoon after a sufficient interval for consultation and deliberation among the felons who had killed the victim around five hours earlier. It will be observed that under Article 267 of the Revised Penal Code, the circumstance that the kidnapping is perpetrated for the purpose of ransom raises the imposable penalty to death. 24 It is essential, however, that the element of deprivation or restraint of liberty of the victim be present. The fact alone that ransom money is demanded would not per se qualify the act of preventing the liberty of movement of the victim into the crime of kidnapping, unless the victim is actually restrained or deprived of his liberty for some appreciable period of time or that such restraint was the basic intent of the accused. Absent such determinant intent and duration of restraint, the mere curtailment of freedom of movement would at most constitute coercion. In addition, Francis Banaga, then already fourteen years of age and a fourth year high school student, was neither forced nor coerced unlawfully into going along with his killers. He voluntarily boarded the car and went with the Marajas brothers to Laguna. The victim had every reason to trust them as they were his neighbors in Gatchalian Subdivision. In

fact, one of the brothers, accused Leonardo Marajas alias "Eddie Boy," was his schoolmate and a playmate. 25 There was treachery since, under the aforestated circumstances, the victim was lured by his killers into going with them to Laguna without the slightest inkling of their nefarious design, coupled with the sudden and unexpected assault by the malefactors on the hapless victim in the isolated sugarcane plantation in Calamba, which thereby divested him of an opportunity either to effectively resist or to escape. 26 Abuse of superior strength was likewise present, for the accused deliberately resorted to their collective strength for the purpose of overpowering whatever feeble defense the poor Francis Banaga could offer. 27 They thus insured the commission of the crime with practically no risk at all to themselves. Under the factual features present in the commission of the crime, however, we are inclined to grant that the circumstance of superior strength should not be appreciated distinctly but should be considered as being absorbed in and by treachery, 28 and the same is true with regard to the allegation of craft. Hence, abuse of superior strength may not be taken into account separately in this case, either as a qualifying or as an aggravating circumstance. On the other hand, although the trial court and both parties herein have again passed sub silentio thereon, it is evident that the aggravating circumstance of uninhabited place was present since appellant and his co-accused obviously and deliberately chose the desolation and isolation of the sugarcane plantation to perpetrate the crime far from the gaze of potential eye-witnesses. 29 This circumstance is underscored by the fact that they committed the crime at about 12:00 noon, a time of day when any passersby or assistance could hardly be expected in the vicinity of the locus criminis. 30 This aggravating circumstance of despoblado should, therefore, be considered against appellant even if it was not alleged in the informations since it was duly proved. 31 Appellant's defense that he was in another place at the time of Francis Banaga's disappearance and killing must

necessarily fail. Indeed, trite as our innumerable reiterations have already made this statement of rejection, we must perforce again reprobate appellant's alibi as an inherently weak defense decidedly easy of concoction. Apart from that, it is considered as clearly negative in nature. Hence, when arrayed against the positive declarations of the witnesses for the prosecution, the same would all the more be given little consideration. 32 For it to prosper, it must be shown that not only was the accused at some other place at the time of the commission of the offense, but that it was also physically impossible for him to have been there when it happened. 33 Indeed, as correctly pointed out by the trial court in its decision, appellant was not even sure as to his whereabouts on February 8, 1978. He simply offered as an explanation therefor that he was "more or less" in Batangas, which allegation was completely uncorroborated. 34 In light of the foregoing, appellant's further denial that he was entrapped on the night of February 10, 1978 by the authorities after receiving ransom money from Norma Camello must likewise be rejected. Both Norma Camello and Sgt. Simplicio Dulay, one of the police operatives, positively and without hesitation identified appellant as the person who was collared at Luneta Park. 35 Moreover, the police report clearly and definitely bears out the fact that appellant was arrested by the investigating police officers on that night pursuant to the dragnet plan that was prepared for the purpose, 36 the veracity of which record further enjoys the presumption of regularity in the performance of official duties which appellant failed to rebut. 2. Appellant asserts that the trial court should not have given credence to the testimony of Romeo Padica as it is incredible and inconsistent with the other evidence on record. He affects surprise as to why the Marajas brothers would go to the extent of hiring Padica to drive for them when, in fact, Padica himself knew that Leopoldo Marajas was a skilled driver. Moreover, he expresses disbelief that Romeo Padica never conversed with the group while they were on the road

and that, although the latter claims to be a close friend of Leopoldo, he never even knew what was Leopoldo's profession and what was the surname of their common "compadre." He likewise characterizes as incredible the circumstance that he and his cohorts supposedly carried out the crime in broad daylight and that thereafter they simply dismissed Padica with a casual threat of "Pare, steady ka lang, isang bala ka lang." There is no merit in all the foregoing submissions and pretensions of appellant. It is true that the testimony of a particeps criminis is to be invariably viewed with much caution, coming as it does from a polluted source. 37 However, in the case at bar and after a careful evaluation, we find no plausible reason to depart from the favorable appreciation by the trial court of Padica's testimony which the said court characterized as reasonable and probable, given in a clear, straightforward and convincing manner thereby leaving no doubt in the mind of said court that he was telling the truth. 38 Jurisprudentially embedded is the rule that the stamp of approval given by the trial court on the testimony of a particular witness as a consequence of its factual findings is normally accorded finality by appellate courts, the court below having had the opportunity to observe closely the manner by which such witness testified. 39 Furthermore, not a single shred of evidence was introduced by the defense to show any ill motive on the part of Padica to impute such a serious crime on appellant and his brothers, thus entitling to considerable credit his testimony regarding the circumstances surrounding Francis Banaga's death. These conclusions we confirm, not by mere reliance on dicta, but from our own review and calibration of the evidence. There is certainly nothing strange in the matter of the Marajas brothers requesting Padica to drive for them. As testified to by the latter, he was then a close friend of one of the brothers, Leopoldo, who was the one who requested him to drive, and the latter presumably had full confidence in him as he was at the time a professional driver of taxicabs.

Romeo Padica, likewise, can not be discredited just because of his silence on the road and for not knowing Leopoldo's profession and the surname of a common "compadre." It is of common knowledge that there are persons who are taciturn and not as inquisitive as others, or who disdain prying into the affairs even of their close friends. Be that as it may, this witness did testify to and narrate in his sworn statement some personal matters regarding the Marajas siblings, such as the fact that Leopoldo was staying at a house adjacent to that of the Banagas in Tionguiao Street at Gatchalian Subdivision together with his wife, children and Eddie Boy Marajas; that said house was owned by a sister of the brothers; and that Francis Banaga, whose picture he positively identified in court, was a playmate and schoolmate of Eddie Boy Marajas, thus lending credence to his claim of close and fraternal ties with Leopoldo Marajas. 40 The fact that appellant and his co-accused carried out the murder of Francis Banaga in broad daylight is hardly surprising. As pointedly noted by the Solicitor General, "it is not difficult to believe that appellant and his co-accused committed the crime in broad daylight because there were no other persons at the scene of the incident," as the same was inside a desolate sugarcane plantation in the outskirts of Calamba, Laguna and the crime was perpetrated at noon of that day, as we have earlier explained. Having demonstrated to Padica the brutal and merciless manner in which they disposed of Francis Banaga, appellant and his brothers were undoubtedly secure in the thought that Padica would have been sufficiently terrorized thereby and would thereafter keep his silence, and so, just for good measure, they uttered the threat on the latter's life simply as a reminder of what they had in store for him should he waver and ignore that injunctive warning. It is further contended by appellant that the trial court should not have granted the motion to discharge Romeo Padica from the information, as one of the conditions for its grant has not been met, namely, that the prosecution has not shown that

Padica did not appear to be the most guilty. Incidentally, appellant slurs over the fact that this order of the trial court was sustained by the Court of Appeals in CA-G.R. No. 16302 which denied appellant's petition for certiorari and prohibition assailing said order, the judgment therein having become final and executory on January 20, 1989. 41 Appellant has also clearly lost sight of the rule that the discharge of an accused to be a state witness, lies within the sound discretion of the court before whom it is sought and in the exercise of that discretion, it is not required that the court be absolutely certain that all the requirements for the proper discharge of a co-accused be present. 42 In the case under consideration, the prosecution presented enough evidence to support its motion for the discharge of Padica. The trial court's reliance thereon and its consequent finding on the basis thereof that Padica did not appear to be the most guilty must be respected as it was in better position to evaluate such evidence. Appellant likewise points to portions in the testimony of Padica which are allegedly not substantiated by the evidence on record. Thus, appellant argues that while Padica claimed that the victim was stabbed by Leopoldo Marajas and then shot at four times by appellant, yet the necropsy report of the medico-legal officer, Dr. Eusebio P. Panganiban, showed no stab wounds but only lacerated wounds and two gunshot wounds. Further, Padica's testimony that the victim was dragged inside the plantation and instantly stabbed and shot to death is supposedly belied by the findings in the necropsy report that Francis Banaga's body had several hematomas and contusions. 43 We nonetheless agree with and give due credit to the following explanation of the court below regarding these seeming conflicting aspects: "The defense counsel also capitalized on the supposed inconsistency between the allegation of Padica that Leon Marajas, Jr. shot Banaga four (4) times and the autopsy report stating that the victim sustained two (2) entry gunshot

wounds. Padica testified that Leon Marajas, Jr. shot Francis Banaga four (4) times without stating that the victim was hit also four (4) times. The fact that he suffered two (2) entry gunshot wounds clearly indicates that Francis was shot, supporting the version of Padica that the child was fired upon by Leon Marajas, Jr. "Also pointed out as a basis for not believing the testimony of Padica is the supposed conflict between his assertion that Leopoldo Marajas stabbed Banaga with a knife and the finding of Dr. Panganiban that the victim, aside from the gunshot wounds, sustained only lacerated wounds and contusions. The defense implied that Banaga was not stabbed by Leopoldo Marajas as there is no finding that he sustained stab wounds. A logical analysis of this point shows that there is no inconsistency. Padica stated that he saw the accused Leopoldo Marajas stab the victim but he did not say that Banaga was hit by the stabbing blows delivered by the said accused. It could also be that one of the blows hit the boy but without piercing his body, causing only lacerations thereon." 44 As for the several hematomas and contusions that were discovered on the body of Francis Banaga, it is entirely possible that the same were inflicted when the victim put up a furious struggle for his life against his assailants. According to Padica, the Marajas brothers forcefully pulled out Banaga from the car when they stopped by the roadside. They continued to inflict physical harm on the boy while prodding him to proceed inside the sugarcane plantation until they reached a clearing where, after Leopoldo Marajas delivered stabbing blows on the victim which may not have inflicted knife wounds but contusions from the assailant's clenched fists, Leon Marajas, Jr. then fired away with the fatal shots. All the while and just before he was shot to death, Padica narrated that the victim desperately exerted all efforts to ward off the assault on his person. 45 Appellant also raises as an issue the questionable manner in which Padica surrendered, after nearly three years of hiding, to Lt. Cesar Perez of the Lucena PC Regional Security Unit

whom he met only for the first time at the Lucena City marketplace. But, as Padica candidly revealed, and we find his explanation satisfactory and credible, he had desired all along to surrender as he had grown tired of constantly fearing for his life and of his difficult plight as a fugitive from justice. He was obviously always on the lookout for persons in authority whom he could trust during his stay of two to three months in Lucena City where he had in the meantime found work as a porter in the public market. In the course of his stay there, he had heard about the "kind-hearted" Lt. Perez, a ranking officer of the local constabulary. 46 His subsequent meeting and surrender to Lt. Perez at the marketplace was no strange coincidence as it is obviously a place where all kinds of people go to and cross paths. That it may have taken Padica over two years to finally give himself up to the authorities is understandable. He had witnessed a heinous crime perpetrated on a defenseless fourteen-year old boy by his killers, and the latter had threatened him with bodily harm should he reveal what they had done. In view thereof, it was but natural that Padica would hide, away from the possible clutches of the Marajas brothers, and keep unto himself the dark secret lest he suffer the same grim fate that befell Francis Banaga. 3. Appellant finally contends that the failure of the prosecution to charge him as an accused in the original information is a fatal defect. Again, we find no merit in this fatuous assertion. The rule is that the complaint or information should sufficiently allege the name of the accused, failing which the complaint or information would be rendered invalid. The test of sufficiency is laid down in Section 7, Rule 110 of the Rules of Court, which states: "Sec. 7.Name of the accused. A complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known, or

if his name cannot be discovered he must be described under a fictitious name with a statement that his true name is unknown. If in the course of the proceeding the true name of the accused is disclosed by him, or appears in some other manner to the court, the true name of the accused shall be inserted in the complaint or information and record." In the case at bar, there is no dispute that appellant was arraigned under the original information and that he entered thereto a plea of not guilty under the name of "Leonardo Marajas." At that juncture, appellant should have raised the error as to his identity by filing a motion to quash on the ground of lack of jurisdiction over his person, in line with the doctrine explained in People vs. Narvaes 47 laid down as early as 1934. But, as aforestated, appellant did not do so but instead voluntarily appeared at the arraignment and pleaded not guilty thereat, albeit under a different name. Consequently, the trial court acquired jurisdiction over his person and it could have rendered a valid judgment of conviction based on the original information even without need of an amendatory information to correct appellant's name. What we stated in Narvaes is worth repeating: ". . . (w)hen the appellant was arraigned under the name of Pedro Narvaes, which is the name appearing in the information, he merely entered his plea of 'not guilty' under the said name. It was on that occasion that he should have for the first time raised the question of his identity, by filing a demurrer based on the court's lack of jurisdiction over his person, inasmuch as he was then considered as Pedro Narvaes, not Primo Narvaes. Not having filed the said demurrer, it must necessarily be understood that he renounced it and therefore he is now estopped from raising, or insisting to raise, the same question, not only in this appeal but even at the trial . . ."

The subsequent amendment to insert in the information Leon Marajas, Jr.'s real name involved merely a matter of form as it did not, in any way, deprive appellant of a fair opportunity to present his defense. 48 Moreover, the amendment neither affected nor altered the nature of the offense charged since the basic theory of the prosecution was not changed nor did it introduce new and material facts. 49 Such an amendment is explicitly allowed under the second paragraph of Section 7, in relation to Section 14, Rule 110 of the Rules of Court, the pertinent portion of which provides that "(t)he information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused." At any rate, whatever irregularity may have attended the inclusion of appellant's name as an accused in the amended information has been waived by his subsequent appearance and entry of plea at his arraignment under said amendatory information. WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accused-appellant Leon Marajas, Jr. y Ramos of the crime of murder and IMPOSING upon him the penalty of reclusion perpetua. Accused-appellant is further ORDERED to pay the heirs of the late Francis Banaga the sum of P50,000.00 as death indemnity, in line with current jurisprudential policy, and likewise to pay the costs. SO ORDERED. Narvasa C .J ., Padilla Nocon and Campos, Jr., JJ ., concur. Footnotes

G.R. No. 118570 October 12, 1998

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BENEDICTO RAMOS y BINUYA alias "Bennie", accusedappellant.

PER CURIAM: This is an automatic review of the decision of the RTC-Br. 78, Quezon City, in Crim. Case No. Q-94-58036 finding accusedappellant BENEDICTO RAMOS y BINUYA guilty of two (2) separate heinous crimes kidnapping for ransom and murder and sentencing him to suffer the supreme penalty of DEATH in each case and to indemnify the heirs of the victim in the amount of P50,000.00 plus P105,150.00 for funeral expenses. 1 On 13 July 1994, at about six-thirty in the morning, an American pastor named Malcolm Bradshaw was driving his car along EDSA to take his daughter Michelle to school. At the bus stop between Corinthian Gardens and the corner to White Plains Avenue, Quezon City, he saw a woman, later identified as the victim Alicia Abanilla, struggling to break away from the arms of a man known later to be accusedappellant Benedicto Ramos y Binuya alias "Bennie." The woman hailed a passenger bus and then a white car to no avail. Perhaps no one comprehended the situation she was in. Realizing that the woman was in deep trouble, Bradshaw stopped his car and blew his horn repeatedly to attract the woman's attention. She was hysterical and Bradshaw was to her heaven-sent. She grabbed the opportunity and ran towards Bradshaw's car and hopped in at the back seat. Unfortunately for her, Ramos caught up with her and squeezed himself into the same car. From EDSA Bradshaw turned right towards White Plains Avenue where he was flagged down by a traffic policeman. As Bradshaw slowed down Ramos pulled out his gun and ordered him to go straight ahead, which the latter obeyed. As they cruised along White Plains Avenue, Alicia handed her

wallet to Michelle and asked the latter to look in there for some medicine herself. Later she took back her wallet and tried to look for her medicine herself. As she went through the contents of her wallet a receipt fell off and landed on the left side of Michelle. Alicia then asked the accsused, "Bennie, has Cecil had her baby?" "No," replied Ramos. "Is she having it by caesarian?" Ramos did not answer. "Does Cecil know that you are doing this to me . . . .that you are holding me hostage?" Again Ramos did not answer. 2 Upon reaching Katipunan Avenue in front of Blue Ridge Subdivision, Ramos told Bradshaw to stop at Rajah Matanda Street, Project 4, Quezon City, where he got off and pulled Alicia out of the car. She clung to the shoulders of Michelle muttering, "God bless you. Pray for me and notify my family." Then she placed her arm around Bradshaw's neck and softly whispered to him, "I will probably not get out of this with my life. Tell my family my situation." At about ten of seven, Ramos finally succeeded in pulling Alicia out of the vehicle. Soon after, Bradshaw discovered the receipt dropped by Alicia Abanilla which contained her name and residence telephone number. Thus after taking his daughter to school, he proceeded to his office, called the number in the receipt and inquired about Mrs. Abanilla. The maid informed him that Mr. and Mrs. Abanilla had already left for work at Meralco. Later that morning, at the instance of Bradshaw, one of his employees called up a friend at Meralco to inquire about Mrs. Abanilla, and the former was told that Mrs. Abanilla was at that time apparently being held hostage by a man who was demanding ransom for her release. Meanwhile, at around seven-fifteen, Alicia called up her boss, Atty. Pastor del Rosario, for whom she worked as a confidential secretary at Meralco. Atty. del Rosario was still in bed. She begged him not to ask any question but said that she needed P200,000.00 in cash immediately, otherwise, she might not be able to go home anymore. She assured him that she had enough funds in the bank to repay him. She then requested him to give the money to Inday, a lady messenger at Meralco, with instruction to deliver the money to her at

Glori Supermart at Sikatuna Village. Atty. del Rosario suggested that the money be delivered instead by a Meralco security personnel but she refused, saying, "Please not security, I do not want them to know what happened to me." Towards the end of their conversation, Alicia entreated, "Sir, you are the only one who can help me now, I cannot turn to anyone else. Please help me. " 3 Del Rosario hurriedly gathered P200,000.00 in cash, placed the money in a white envelope and tucked it in a plastic bag. He then ordered his driver, Serrano Padua, to fetch Inday from Meralco. When Inday arrived, Del Rosario gave her the money and told his driver to take her to Mrs. Abanilla at Glori Supermart with specific instruction to give the money to no one else but Mrs. Abanilla. 4 At around seven-thirty, a taxi cab driven by Antonio Pineda passed by. Ramos and Mrs. Abanilla boarded the cab and took the back seat. They proceeded towards Anonas Extension in Sikatuna Village near Glori Supermart. Ramos instructed Pineda to park his taxi in front of the supermarket as they had to wait for someone. For P700.00 Pineda agreed to wait for them so he could take them later to Norzagaray, Bulacan. Driver Serrano Padua and Inday finally arrived at their rendezvous. Pineda, who was requested by Alicia to receive the money, approached them and asked about the package for Mrs. Abanilla. However, Inday refused to give the money saying that she was instructed to deliver it only to Mrs. Abanilla. Pineda went back to the taxi and informed his passengers of Inday's refusal. Mrs. Abanilla gave her identification card to Pineda and told him to ask Inday to face the taxi and show herself through the window. Pineda went back to Inday, gave Mrs. Abanilla's ID and asked her to approach the taxi to see Mrs. Abanilla. Inday recognized Alicia so the former handed the money to Pineda. Thereupon, Ramos told Pineda, "Tara, deretso tayo sa Norzagaray." On the way to Norzagaray travelling along Commonwealth Avenue, Ramos suddenly changed his mind and decided to

head for Bocaue, Bulacan, instead. During the entire trip, Pineda noticed Alicia looking very pale, fidgety and apparently perturbed. Upon arriving in Bocaue, they went straight to the St. Paul Hospital compound where they parked. Pineda and Ramos got off to relieve themselves by a fence. Pineda noticed a revolver tucked in Ramos' waist. Afterwards, Ramos told Pineda to leave the taxi for a while as he was going to discuss something with his companion. Obviously, he was interested in counting the money in the plastic bag. As Pineda waited for his passengers to call him, he observed that his woman passenger kept opening and closing the rear door of his taxi as if trying to get out. Pineda became uneasy. He slowly inched himself towards his taxi. There he saw Ramos strangling his woman companion. So he told Ramos, "Boss, iba na yata iyang ginagawa mo ah, baka mapadamay ako diyan!" He boarded his taxi and asked his passengers to transfer to another vehicle as he did not want to get involved in what was going on. But Mrs. Abanilla pleaded, "Mama, huwag mo akong iiwanan dito dahil papatayin ako ng lalaking ito. May kapatid ka din na babae." Ramos retorted, "Hoy! pati iyong isip ng driver nililito mo." Then he ordered Pineda to take them back to MacArthur Highway where they would take another ride. As Pineda drove out cf the hospital compound, Mrs. Abanilla panicked and held him by the shoulder pleading, "Huwag mo akong iiwanan dito." When Pineda reached MacArthur Highway near Sto. Nio Academy in Bocaue he saw a traffic aide, Gil Domanais, who was directing traffic. He, had a gun on his waist. Upon seeing the armed traffic aide, Pineda stopped his cab, got of: and told Domanais that his male passenger had been strangling his female companion. He also narrated that his passengers, who had been with him since morning, refused to get off his cab and he had not yet been paid by them. Domanais suggested to him to bring his passengers to the police station.

Domanais peeped through the window of the taxi and saw Ramos with his left arm around the shoulders of Alicia. She was crying. She told Domanais that Ramos was armed with a revolver and was hurting her. At that moment Ramos pulled out his gun prompting Domanais and Pineda to run away and take cover. Ramos then transferred to the driver's seat and drove the cab away. In a desperate effort to free herself, Alicia opened the left rear door and jumped out of the cab; unfortunately, her blouse was caught in the process. As a consequence, she was dragged by the vehicle. Ramos suddenly stopped the taxi, and as Alicia attempted to rise, he aimed his gun at the back of his hapless victim, fired at her twice, hitting her just above her nape. Domanais, who was armed with a .38 caliber pistol and witnessing the shooting, fired at Ramos; but he missed him. Then he called for police assistance as Ramos fled on foot. On the same day, responding elements of the Bocaue Police Station apprehended Ramos in a grassy area at the Violeta Metroville Subdivision. The police connfiscated his .22 caliber Smith and Wesson Magnum with four (4) live ammunitions and two (2) spent shells, and recovered a bag containing P138,630.00 consisting of P1,000.00 and P500.00 bills. Mrs. Abanilla's body was left at the scene of the shooting, lying face down parallel to the taxi. Dr. Benito B. Caballero, Medico-Legal Officer of the Province of Bulacan, conducted the autopsy and testified that the cause of death was "shock due to massive external. . . intracranial. . . . hemorrhage due to gunshot wound in the head penetrating the skull and the brain tissues." 5 Thereafter an Information was filed against Benedicto Ramos y Binuya alias "Benni" charging him with the complex crime of kidnapping for ransom with murder, to which he pleaded not guilty. To expedite the proceedings, the prosecution and the defense agreed during the pre-trial that the testimony of their witnesses would be in the form of affidavits which would be the bases for the cross-examination. Trial on the merits than ensued.

For his part, Ramos denied having kidnapped and killed the victim. In his Sinumpaang Salaysay 6 he narrated his versio of the incident. 3. Na, ang bintang sa akin na "kidnapping for ransom with murder' ay walang katotohanan sapagkat ang totoo ay ang mga sumusunod: a. Ang yumaong si Alicia Abanilla ay aking ninang sa kasal noong ikinasal kami ng aking asawang si Cecillia Pascual noong 17 October 1993 sa Sta. Rita Parish Church, Quezon City. Bago ako at ang aking asawa ikasal sa nabanggkit na simbahan ay kasal na kami sa isang civil marriage noong June 30, 1993 sa City Hall ng Maynila . . . d. Na, dahilan sa wala akong hanapbuhay mula ng ako'y tanggalin sa Meralco, ako'y nagsabi sa aking ninang Alice na ako ay paluwagan ng kaunting halaga ng pera dahil sa ang aking asawa ay manganganak at wala akong panggastos. Ang una kong sabi sa kanya ay noong unang linggo ng Hulyo, 1994 sa pamamagitan ng telepono sa Meralco. Ang sabi niya sa akin huwag akong mag-alala pagkat tutulong siya sa akin kapag manganganak na ang aking asawa. Ngunit pinagbawalan niya akong magpunta sa kanilang bahay o kaya sa kanyang opisina, kaya sa telepono lamang kami nag-uusap . . . g. Sapagkat ako'y ayaw papuntahin ng aking ninang Alice sa kanyang at sa kanyang opisina, at ang sabi niya ay abangan mo na lamang siya sa EDSA kanto ng White Plains, ang ginawa ko siya sa kanyang rota patungo sa kanyang opisina. Ng kami ay magkita sa EDSA sa may kantong patungong White Plains, sinabi ko agad sa kanya na kailangan ko na 'yong ipinangako niyang tulong para sa aking asawa. Ang sabi niya sa akin bukas na raw niya ibibigay at doon din sa lugar na iyon kami magkita. Hindi ako pumayag at doon kami nagtalo, pagkat sabi ko sa kanya pupunta ng ospital ang asawa ko at ngayon din kailangan ko ng pera. Habang kami nagtatalo,

may dumating na sasakyang Toyota Corolla Station Wagon na ang driver ay Amerikano at pinara ng ninang Alice ko at hinintuan kami ng kano na napag-alaman ko nitong bandang huli na si Malcolm Bradshaw, at isinakay si ninang Alice at sumakay na rin ako . . . . j. Ng kami ay dumating sa St. Paul Hospital Bocaue, napagalaman kong wala doon ang asawa ko, kaya't sabi ko kay ninang Alice tutuloy kami sa Norzagaray, sa bahay ng aking biyenan at baka nandoon pa si Cecil. Ayaw ng sumama ni ninang Alice sa Norzagaray dahil nahihiya daw siya sa biyenan ko, kaya't kami nagtalo. Gusto kong makumbinsi si ninang Alice na sumama sa Norzagaray kaya pinakiusapan ko ang driver ng taxi na lumayo muna sandali pagkat may paguusapan kami ng ninang Alice at sumunod naman ang driver na lumayo sa taxi . . . . k. Sinabi ko kay ninang Alice na kailangan sumama siya sa akin sa Norzagaray at siya ang magbigay ng pera kay Cecil upang malaman ni Cecil na ang pera ay galing sa kanya. Ito sa dahilan na kung ako ang magbibigay ng pera sa asawa ko, baka itong si Cecil ay magduda na masama ang pinanggalingan ng pera at matakot, at magkaroon ng shock at duguin. Ang aking pangamba na baka magduda si Cecil na ang pera ay galing sa masamang paraan ay dahil sa ako nga ay napagbintangan na nagpalsifica ng tseke ni Atty. del Rosario at yun din ang dahilan ng aking pagkakatanggal sa trabaho ko sa Meralco . . . . 1. Hindi kami nagkasundo ng ninang ko at maya-maya dumating na ang driver at nagyaya na dahil gutom na raw siya. Pumayag ako na lumakad na ang taxi at ang plano ko ay ituturo ko sa driver ang daan patungo sa Norzagaray, ngunit pagdating sa MacArthur Highway, hininto ng driver ang taxi sa kanang parte ng Highway patungong Maynila at bumaba ang driver at kinausap yung traffic aide na may baril at nakatayo sa tabi ng highway. Hindi ko narinig

kung ano ang sinabi ng driver sa traffic aide ngunit ng makapagusap na sila, ang traffic aide ay lumapit sa taxi na para bagang magiimbestiga. Ng sumilip ang traffic aide sa bintana ng taxi sa tapat ng driver na noon ay nakabukas, sinabi ng ninang Alice na may baril ang kasama ko. Ang traffic aide ay natakot at biglang lumayo at kumuber sa tabi ng pader at ang driver naman ay tumakbong palayo. Ang ginawa ko ay lumipat ako sa lugar ng driver at ang plano ko ay ako na ang magmamaneho patungong Norzagaray pagkat ang driver tumakbo na at nangagamba ako na baka kung ano na ang nangyayari kay Cecil at wala sa ospital . . . . m. Ng lumakad na ang taxi, si ninang Alice na noon ay nakaupo pa rin sa likuran ng driver seat, biglang tumayo at dinampot ang baril na dala ko na noon ay nasa tabi ko sa upuan ng driver at biglang binuksan ang kaliwang pinto sa hulihan at bababa ngunit nahawakan ko ang damit niya ng aking kaliwang kamay pagkat nakahawak sa manibela ang kanang kamay ko at siya ay hindi nakababa agad. Sa aming pagbubuno pagkat hinihila ko siya na mapaupo muli at siya naman ay pilit na bumababa, pumutok ang hawak niyang baril ng dalawang beses. Maya-maya may pumutok na isa at biglang tumumba si ninang Alice at bumagsak sa kalsada na ang ulo ay patungo din sa direksyon ng taxi . . . . n. Ng makita ko si ninang Alice na bumagsak sa kalsada, bigla akong bumaba at dinampot ko yung baril na noon ay nabitiwan na ni ninang Alice at dinampot ko rin ang bag ng ninang ko at tumakbo akong papalayo pagkat naalala ko yung traffic aide na nakakuber sa tabi ng pader na noon ay malapit pa sa taxi. After trial, the court a quo convicted Ramos of two (2) separate crimes kidnapping for ransom and murder instead of the complex crime charged in the Information. It held that there was no proof that the victim was kidnapped

for the purpose of killing her so as to make the offense a complex crime. Thus, the killing of the victim was found to be merely an afterthought making accused-appellant liable for two (2) separate offenses. In this petition, accused-appellant imputes to the trial court the following errors: First, the lower court erred in concluding that his guilt was proved beyond reasonable doubt; Second, the lower court erred in disregarding vital pieces of evidence in his favor; and, Third, the lower court erred in finding him guilty of the crimes of kidnapping for ransom and murder. Specifically, accused-appellant argues that kidnapping was never sufficiently established. He maintains that all throughout the incident the victim was not under detention at any moment nor was she deprived in any manner of her liberty; that if there was some kind of pressure or force employed upon the victim, such pressure or force did not amount to a deprivation of liberty but was merely a matter of persuasion that moved the victim to go with him voluntarily. We resolve. The essence of the crime of kidnapping as defined and penalized under Art. 267 of The Revised Penal Code, as amended by Sec. 8 of RA No. 7659, 7 is the actual deprivation of the victim's liberty coupled with an indubitable proof of intent on the part of the malefactor to effect such restraint on the offended party' liberty. The term "actual deprivation of liberty" consists not only of placing a person in an enclosure but also of detaining a person or depriving him in any manner of his liberty. 8 In the instant case, actual restraint of the victim's liberty was evident from the moment she was forcibly prevented by accused-appellant from going to work at Meralco and taken instead against her will to Bulacan. Her freedom of movement was effectively restricted by her abductor who, armed with a .22 caliber Smith and Wesson revolver which instilled fear in her, compelled her to go with him to Bulacan. This is clear from the testimonies of witnesses Bradshaw and Pineda, thus

Bradshaw: 4. On 13 July 1994, at around 6:30 a.m., I was driving from my home in Wilson St. to the Marcos Highway, to bring my seventeen (17) year old daughter, Michelle, to school. I was driving a 1981 Toyota Corolla station wagon, with plate no. PAZ 395. Between the gate of Corinthian Village and the right turn towards White Plains Avenue, at the bus stop, I saw a lady, struggling and breaking away from an unidentified male (the "male"). xxx xxx xxx 25. The male got down and started to pull out the lady from the car. The lady held on to my daughter and in a quiet voice, whispered to her, "God bless you, please tell my family my situation." The male kept trying to pull her out. As she was about to be pulled out of the car, she then held on to me with her right arm and in a quiet voice, whispered to me, I will probably not get out of this with my life. Tell my family my situation." I asked her, "How can we? We don't even know your name." 9 Pineda: Q54: Habang nasa biyahe kayo ay wala ka bang nakitang takot o tanda ng pangamba sa panig ng babae? S: Meron po. Pag tumitingin ako sa rear view mirror ko ay napapansin kong maputlang-maputla yung babae na parang takot na takot. xxx xxx xxx

Q56: Pag nagsasalita ba yung babae ay may napapansin ka bang nerbiyos so boses niya? S: Meron ho. xxx xxx xxx Q71: Pagkatapos ay ano ang sumunod na pangyayari? S: Noong naiinip na ako bumalik na ako sa dalawa at nagtanog ako ng ganito "ano ba boos?" ang sagot sa akin ng lalaki ay bigyan ko uli sila ng fifteen minute na pag-uusap. Ang ginawa ko ay lumayo uli at nakipagkuwentuhan sa isang driver na gumagawa ng pintuan ng kaniyang kotse. Pagkatapos tinanong ko ang kakuwentuhan ko kung anong oras na at ang sabi ay 12:45 p.m. na raw kaya inip na inip na ako. Paglingon ko sa taxi ay napansin kong bukas-sara iyong pintuan sa side ng babae at sa wari ko ay parang gustong bumaba ng taxi, maya-maya ay napansin kong sakal-sakal na noong lalake iyong babae. Q72: Ano ang ginawa mo pagkatapos mong makita na sinasakal iyong babae? S: Lumapit po ako at sinabi ko sa lalake na "Boss, iba na yata iyang ginagawa mo ah, baka mapadamay ako diyan." Pagkasabi ko ay binitiwan noong lalake iyong babate na parang gustong

palabasin parang walang nangyari. Pumasok ako sa taxi ko at sinabi ko sa lalake na "lumipat na lang kayo ng sasakyan baka mapadamay pa ako diyan." Ang sabi sa akin ng babae "Mama, mo akong iiwanan dito, dahil papatayin ako ng lalaking ito. May kapatid ka din na babae. " . . . At habang inilalabas ko ang taxi ay nagpapanic na ang babae at kumakapit na sa kaliwang balikat ko at umiiyak na nagsasabing "huwag mo akong iiwan dito" . . . 10 From the narration of facts by the prosecution witnesses we note that on at least three (3) occasions the victim tried, albeit unsuccessfully, to get away from appellant: the first attempt was at EDSA when she struggled to free herself from his clutches and hailed a bus and a white car but without success, and later, when she jumped into the car of Bradshaw to escape; the second was at St. Paul Hospital, Bocaue, when witness Pineda noticed from a distance the rear door of his taxi being repeatedly opened and closed by his woman passenger as if trying to get out; and, finally, at MacArthur Highway when the victim jumped out of the taxicab but her blouse was caught at the rear door (although appellant claims he grabbed her blouse and forced her back into the cab 11). It was during this final attempt to free herself that she was gunned down from behind by accused-appellant in cold blood. If there really was no restraint on her person, as appellant insists, there would have been no reason for her to attempt to escape. Furthermore, from her statements to witnesses Bradshaw, Del Rosario and Pineda, the victim clearly hinted at her abduction and the imminent threat on her life. She whispered to Bradshaw, "I will probably not get out of this with my life. Tell my family my situation." To Atty. Del Rosario she said, "I need P200,000.00 in cash immediately, otherwise I might not be able to go home anymore; Sir, you are the only one who can help me now, I cannot turn to anyone else. Please help

me." And, to witness Pineda, "Mama, huwag mo akong iiwanan dito dahil papatayin ako ng lalaking ito. May kapatid ka din na babae." It may be observed at this juncture that the victim kept on repeating she was going to die. She even exclaimed to Pineda that she would be killed by accused-appellant. One thing is certain from those statements of the victim, i.e., that she was virtually at the mercy of her tormentor who at that moment was already in complete and effective control of her. The claim of the defense that the force or pressure employed against the victim was in fact merely a matter of persuasion and not constitutive of restraint on the victim's liberty, taxes credulity. Definitely, the acts of forcibly pulling the victim out of the car of witness Bradshaw, strangling her while inside the taxi of Pineda, pulling her back into the cab when she attempted to flee, and eventually shooting the victim twice in the head and hitting her, can hardly be considered as "merely a matter of persuasion." On the contrary, these circumstances are positive indications of the victim's detention by appellant against her will. The victim might have carried occasional conversations with the accused, but this fact did not negate the existence of kidnapping. Evidently, that was just the victim's way of mentally and emotionally coping with the harrowing and dangerous situation she was in. After all, appellant was not a total stranger to her, she being a principal sponsor at his wedding. She had to start a conversation not only to calm herself down but also to appease her captor. For kidnapping to exist, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. It is enough that, as in the instant case, she was in any manner deprived of her liberty, unable to move and get out as she pleased. 12 Accused-appellant next contends that there was no proof he demanded or received money from anybody, since it was the victim herself who asked money from Atty. Del Rosario, and

her statement that "she needed P200,000.00 immediately, otherwise, she might not be able to go home anymore," does not suggest that someone was demanding money from her or that she was being kidnapped; that if his intention was to kidnap the victim for the purpose of extorting ransom, then he could have just left the victim and brought the money with him; that, in fact, when the victim gave the money to him after it was delivered to her by Pineda who received it in turn from Inday, he (appellant) just dropped the money on the floor of the taxi and it was the victim who picked it up and placed it in her bag. The arguments are as puerile as they are untenable. The statement of the victim that "she needed P200,000.00 immediately otherwise she might not be able to go home anymore," should not be interpreted in isolation. Rather, its true meaning should be ascertained in the light of all the surrounding circumstances. When the victim called up Atty. Del Rosario, she was already being held hostage against her will by the accused who; armed and violent, had no qualms in maltreating his Ninang and subsequently shooting her twice and killing her. By his own admission, accused-appellant really did ask for money from the victim although he tried to impress upon the trial court that it was merely a loan. Consider the following statement of accused-appellant . . . sinabi ko agad sa kanya na kailangnn ko na 'yong pinangako niyang tulong para sa aking asawa. Ang sabi niya sa akin bukas na raw niya ibibigay at doon din sa lugar na iyon kami magkita. Hindi ako pumayag at doon kami nagtalo, pagkat sabi ko so kanya pupunta ng ospital ang asawa ko at ngayon din kailangan ko ng pera. 13 The tenor of the foregoing statement unmistakably shows that accused-appellant was not merely borrowing but was actually demanding money from the victim, reminding her of her supposed promise to lend him money for his wife's

delivery. Common experience tells us that when borrowing money, persuasion is used, for debt implies a favor, a request. Thus, the words of accused-appellant "hindi ako pumayang," "doon kami nagtalo," and "ngayon din kailangan ko ng pera," are inconsistent with his excuse that he was just borrowing money from the victim. Moreover, while the records do not disclose that accusedappellant specified the exact amount he needed, the victim was nevertheless explicit in her plea to Atty. Del Rosario to procure for her P200,000.00 in cash immediately. The nagging questions are: Why P200,000.00? Why not just, say, P50,000.00 or even P100,000.00, which was more than enough to cover the hospitalization expenses of appellant's wife? Why "loan" a hefty sum to a person who had been out of work for quite sometime due to a previous misconduct likewise involving money, and whose capacity to pay was doubtful? Nonetheless, the explanation of the accused that what happened was just a simple case of borrowing money coupled with a request that the victim accompany him to Bulacan so his wife would believe the money was really borrowed and did not come from an illegal source, was too lame and anemic, and disproved by subsequent events. Indeed, it hardly conforms to human nature that after appellant was loaned a considerable amount he would suddenly turn vicious toward his own benefactress, strangle her and shoot her to death for no sane reason than that she refused to go with him to Bulacan. From all indications, therefore, no other logical meaning can be ascribed to the victim's statement to Atty. Del Rosario than that the money was intended as ransom, i.e., as consideration for her release from captivity. While it may be true that it was the victim, not accusedappellant, who made the call and asked for the money, it must be stressed nonetheless that actual demand for ransom by the accused from the relatives or friends of the victim is not necessary, much less essential, as the demand may be

made directly on the victim herself. This convenient method commonly resorted to by kidnappers, more often, proves to be very effective not only in compelling the relatives and friends of victims to pay ransom but also in concealing the identities of the malefactors. The fact also that the money was delivered to and received by the victim personally did not make it any less a ransom prize. After it was handed to the victim, she gave it to accused-appellant, who was seated beside her at the back seat of the taxi. Clearly, accused-appellant, who was in total control of the situation, obtained actual and constructive possession of the ransom money when it was delivered to the victim.14 On his conviction for murder, accused-appellant points out contradictions in the testimonies of prosecution witnesses Antonio Pineda and Gil Domanais concerning their positive identification of appellant as the one who shot the victim. According to accused-appellant, Antonio Pineda testified on direct examination thus Q: Sinabi mo kanina na nakita mong binaril ng dalawang beses sa ulo yung sakay mong babae noong kasama niyang lalaki, nakita mo ba ito? A: Oo, po.
15

And on cross-examination Pineda testified Q: But you did not see the person who fired the shots? A: No, sir. Q: And you ran away, is that correct? A: Yes, sir.
16

The same witness also gave two (2) places of his birth, namely, tubo sa Baclaran and tubong Bisaya (taga Antique ang ama at Bicol ang ina) T: Ano ang iyong tunay na pangalan, edad, tirahan at ibang bagay hinggil sa iyong pagkatao? S: Antonio Pineda Jr. y, Lirio, 22 taong gulang, binata, tubo sa Baclaran, Paranaque, Metro Manila at nakatira/stay-in taxi driver sa No. 65 Matahimik St., Teacher's Village, Quezon City, at ang aking mga magulang ay may permanent address sa Block F-28, Lot 9, CDC 12 Area D, Barangay San Nicolas, Dasmarias, Cavite. 17 xxx xxx xxx Q: Pakisabi ang iyong buong pangalan at iba pang mga bagaybagay na maaaring mapagkakilalan sa iyo? S: Ako po si Antonio Pineda Jr. y Lirio, 22 taong gulang, binata, tubong Bisaya (taga Antique ang ama at Bicol ang ina) at stay-in taxi driver sa No. 65 Matahimik St., Teacher's Village, Quezon City, at ang aking mga magulang ay may permanent address sa Block F-28, Lot 9, CDC 12 Area D, Barangay San Nicolas, Dasmarias, Cavite. 18 Moreover, according to appellant, Pineda gave two (2) different versions as to who caused the taxi to stop at MacArthur Highway

S: . . . Tuloy-tuloy po ako ng pagtakbo ko at pagdating ko sa kanto ng MacArthur Highway na malapit sa Petron station at Sto. Nio Academy ay may nakita akong traffic aide na nakauniporme ng khaki at may sukbit na baril. Ang ginawa ko ay bigla akong nagpreno sa tabi sabay labas ng taxi at nilapitan ko iyong traffic aide. 19 T: Ano ang ginawa ninyo sa Highway kung mayroon? A: Pinatigil po ni Bennie yung taksi at nagtalo silang dalawa ng biktima. 20 On the part of witness Gil Domanais, appellant draws our attention to the witness' statement to the police that appellant shot the victim twice in the head, while on crossexamination the same witness declared Q: But since you are (sic) at the back, your position was at the back of the taxi, you did not know who fired the gun, is that right? A: I know, sir. Q: Why do you say you know? A: Because the shots came from inside the taxi, sir. Q: But you did not know who actually fired the shots? A: I'm very sure that it was the suspect who fired the gun, sir.

Court: Did you see the suspect fire the gun? A: I saw it sir. Q: But you did not hit him because actually you cannot (sic) see him when you fired your gun, is that correct? A: I saw him and it was the upper shoulder that was showing, sir. 21 Accused-appellant stresses that witness Domanais was merely presuming it was accused-appellant who fired at the victim. Thus, insofar as the murder is concerned, the prosecution failed to establish the guilt of accused beyond reasonable doubt. We disagree. The shooting of the victim took place in the presence of and within the auditory perception of witness Pineda who was just ten (10) meters away from the scene. He heard the shots from the taxi whose lone occupant at that time was accused-appellant. In addition, witness Pineda explained that he earlier saw appellant attempting to kill the victim by strangulation; thus, he concluded, and rightly so, that it was appellant who shot the victim to death. With respect to Pineda's supposed inconsistent statements on where he was born, this was sufficiently explained by him during his cross-examination Q: Mr. Pineda, you gave your statement to the police on July 13, at about 11:40 in the evening, and you were asked about your name and other personal circumstances. Your answer is (sic) You are Antonio Pineda, tubo sa Baclaran, Paranaque, Metro Manila. Now in your second statement given to

Atty. Abad on the 26th of July, you were asked the same question and you answered you are (sic) Antonio Pineda, tubong Bisaya. Now will you explain to us why in your first statement you said that you are (sic) tubong Paraaque and then in your second statement, you are (sic) tubong Bisaya, which is correct? A: My father is a Visayan and my mother is a Bicolana and I was born here in Manila, sir. Q: In other words, you were not born in the Visayas? A: No sir.
22

By saying therefore that he was "tubong Bisaya" despite the fact that he was born in Manila, Pineda was merely disclosing his Visayan origin on his father's side. The other alleged inconsistencies in Pineda's sworn statements as to who caused the cab to stop along the highway refer to minor details which cannot impair his credibility. On the contrary, such consistencies even guarantee that his testimony was not a product of perjury. As succinctly observed by the trial court

23

. . . although the testimonies of the two (2) prosecution witnesses, namely, Antonio Pineda, driver of the taxi cab wherein accused and the victim rode from Quezon City up to Bocaue, Bulacan, and Gil Domanais, the traffic aide, contained minor inconsistencies, the same even bolstered their credibility showing that their testimonies were unrehearsed. So, also, prosecution witnesses testified in a categorical,

straightforward, spontaneous and frank manner.

24

A: The wall where I hid was only low, sir, that is why when I stood up, I could easily see, sir. 25 As can be seen from the foregoing dialogue, the trial court clarified the matter with witness Domanais who positively identified accused-appellant as the assailant. Moreover, in his sworn statement Domanais categorically stated . . . . Sakay po siya ng isang taxi at siya po ay tumalon ngunit nakawit po sa pinto ang damit niya kaya po siya nakaladkad ng taxi ng kaunti at ng ihinto po ng suspect ang taxi dahilan po sa bago nangyari ito ay tumakbo po ang driver ng taxi ay dinukwang na lang po ng suspect ang biktima at binaril nga po ng dalawang beses sa ulo. 26 The suggestion that it was witness Domanais' shot which hit the victim is belied by the evidence. The medico-legal officer who autopsied the victim testified that the entry wound at the back of the victim's head measured 0.75 centimeters and that based on the character of the wound the bullet causing it was fired from a .22 caliber gun similar to that confiscated from accused-appellant. Therefore, the fatal shot could not have come from witness Domanais' .38 caliber pistol. 27 Moreover, witness Domanais affirmed that it was only after he saw accused-appellant shot the victim twice in the head that he opened fire at accused-appellant. The rule in this jurisdiction on the matter of credibility of witnesses is well-settled. Unless there is a showing that the trial court had overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have affected the result of the case, the appellate court will not disturb the factual findings of the lower court, which had the opportunity to observe the demeanor of the witnesses while testifying and was in a better position to gauge their credibility and appreciate properly the relative weight of the often conflicting evidence for both parties. 28

As for the allegation that Domanais was merely presuming it was accused-appellant who fired at the victim, suffice it to state that Domanais categorically testified that it was accused-appellant who shot the victim in the head. On crossexamination, he gave a detailed account of how the shooting took place Q: But since you are (sic) at the back, your position was at the back of the taxi, you did not know who fired the gun, is that right? A: I know, sir. Q: Why do you say you know? A: Because the shots came from inside the taxi cab, sir. Q: But you did not actually saw (sic) who fired the shots? A: I'm very sure that it was the suspect who fired the gun, sir. Court: Did you see the suspect fire the gun? A: I saw it, sir. Court: Where were you? A: I was on the side of the taxi, sir. Court: I thought you ran and took cover on the wall.

In the present case, we find no cogent reason to overrule the judgment of the trial court giving credence to the declarations of prosecution witnesses Pineda and Domanais who positively identified accused-appellant as the perpetrator of the crime. Moreover, the accused anchored his defense on bare denial. Certainly, this negative assertion cannot prevail over the unimpeached testimony of the prosecution witnesses describing in sufficient detail how accused-appellant shot the victim. In the face of the clear and positive declaration of witnesses, the defense of denial hardly assumes probative value and goes even farther down the drain in the absence of any evidence of ill motives on the part of the witnesses to impute so grave a wrong against accused-appellant. 29 Thus when accused-appellant suddenly, unexpectedly and without warning, shot the victim from behind twice after the latter failed in her attempt to escape but was dragged instead by the cab where she was held captive, and while in a pitiable state of utter helplessness, the crime committed cannot be any less than murder qualified by treachery. Considering the evidence extant on record, we agree with the trial court that victim Alicia Abanilla was indeed kidnapped for ransom and then murdered by accusedappellant. But the kidnapping for ransom and murder should not be treated as separate crimes for which two (2) death penalties must as a consequence be imposed. Instead, under Art. 267 of The Revised Penal Code, as amended by RA No. 7659, accused-appellant should be convicted of the special complex crime of KIDNAPPING FOR RANSOM WITH MURDER and impose upon him the maximum penalty of DEATH. Prior to 31 December 1993, the date of effectivity of RA No. 7659, the rule was that where the kidnapped victim was subsequently killed by his abductor, the crime committed would either be a complex crime of kidnapping with murder under Art. 48 of The Revised Penal Code, 30 or two (2) separate crimes of kidnapping and murder. Thus, where the accused kidnapped the victim for the purpose of killing him, and he was in fact killed by his abductor, the crime

committed was the complex crime of kidnapping with murder under Art. 48 of The Revised Penal Code, as the kidnapping of the victim was a necessary means of committing the murder. 31 On the other hand, where the victim was kidnapped not for the purpose of killing him but was subsequently slain as an afterthought, two (2) separate crimes of kidnapping and murder were committed. 32 However, RA No. 7659 amended Art. 267 of The Revised Penal Code by adding thereto a last paragraph which provides 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. This amendment introduced in our criminal statutes the concept of "special complex crime" of kidnapping with murder or homicide. It effectively eliminated the distinction drawn by the courts between those cases where the killing of the kidnapped victim was purposely sought by the accused, and those where the killing of the victim was not deliberately resorted to but was merely an afterthought. Consequently, the rule now is: Where the person kidnapped is killed in the course of the detention, regardless of whether the killing was purposely sought or was merely an afterthought, the kidnapping and murder or homicide can no longer be complexed under Art. 48, nor be treated as separate crimes, but shall be punished as a special complex crime under the last paragraph of Art. 267, as amended by RA No. 7659. Obviously, the instant case falls within the purview of the aforequoted provision of Art. 267, as amended. Although the crime of kidnapping for ransom was already consummated with the mere demand by the accused for ransom even before the ransom was delivered the deprivation of liberty of the victim persisted and continued to persist until such

time that she was killed by accused-appellant while trying to escape. Hence, the death of the victim may be considered "a consequence of the kidnapping for ransom." Four (4) members of the Court, although maintaining their adherence to the separate opinions expressed in People v. Echegaray33 that RA No. 7659 insofar as it prescribes the penalty of DEATH is unconstitutional, nevertheless, accede to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should accordingly be imposed. WHEREFORE, accused-appellant BENEDICTO RAMOS y BINUYA alias "BENNIE" is found guilty beyond reasonable doubt of the special complex crime of KIDNAPPING FOR RANSOM WITH MURDER under Art. 267 of The Revised Penal Code, as amended by RA No. 7659, and is accordingly sentenced to suffer the maximum penalty of DEATH. Accused-appellant is ORDERED to indemnify the heirs of victim Alicia Abanilla in the amount of P50,000.00 plus P105,150.00 for burial expenses. Conformably 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 the case be forwarded forthwith to the President of the Philippines for the exercise at his discretion of his power to pardon the accused-appellant. SO ORDERED. Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur. Narvasa, C.J., is on leave. Pardo, J., took no part.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ISAGANI LUARTES y PASTOR, accused-appellant.

BELLOSILLO, J.: This is another wicked offense kidnapping of a minor three (3) years of age. On 21 December 1994 the City Prosecutor of Manila charged that on 19 December 1994 the accused Isagani Luartes y Pastor, a private individual, without authority of law, willfully and feloniously kidnapped, detained or deprived of her liberty one Junichi Monique Macairan, a girl three (3) years of age, against her will and consent. The evidence shows that in the afternoon of 19 December 1994 Evelyn Macairan went to shop at the Isetann Department Store along Claro M. Recto Avenue, Manila. With her was her three (3)-year old daughter Junichi Macairan. While strolling on the second floor of the store she noticed that Junichi was no longer by her side, so she immediately informed a sales attendant about her missing daughter. The sales attendant instructed her to proceed to the paging section on the ground floor and have her child paged. Evelyn waited anxiously for the return of Junichi after paging her. Fifteen minutes later an MMA traffic enforcer by the name of Francisco Lacanilao, together with two (2) policemen, entered the department store with Junichi. Lacanilao asked Evelyn if she was the mother of the child. When Evelyn answered in the affirmative, Lacanilao immediately released Junichi to her. He informed Evelyn that a person had just been arrested for the kidnapping of her daughter, and so he requested Evelyn to go with him to the police station to give her statement. On the way out of Isetann she saw the now accused Isagani Luartes outside the department store being mauled by irate

G.R. No. 127452 June 17, 1999

bystanders on the sidewalk. He was handcuffed. On the way to the police station on board their Ford Fiera Evelyn asked him why he abducted her daughter Junichi. His reply was that he was merely interested in the jewelry worn by the child. 1 Traffic enforcer Francisco Lacanilao testified that on 19 December 1994 he was stationed along Recto Avenue in front of Isetann Department Store and that at around 2:50 in the afternoon he noticed something unusual with a passenger jeep along Recto Avenue. Passengers were alighting from the jeep and he could hear a child crying inside the vehicle. He approached the driver and asked him if there was anything wrong and the driver whispered, "Kidnap ito." Then Lacanilao noticed a man seated at the back with a child crying. Lacanilao asked the man, "Pare, anong nangyayari?" and he replied that the child was only afraid of people. When the man alighted from the jeep, Lacanilao placed his arm around his shoulder and said to him, "Halika, pare." But the man scampered away carrying the child with him (karga-karga niyang patalikod). Lacanilao gave chase and with the assistance of a motorcycle cop he was able to apprehend the suspect later identified as the accused Isagani Luartes y Pastor. The girl he was carrying turned out to be Evelyn Macairan's daughter Junichi. 2 The defense offered a different version. According to accused-appellant Isagani Luartes, in the afternoon of 19 December 1994 he was doing his Christmas shopping at Isetann Recto when he noticed a little girl crying beside the escalator. He took pity on her and asked her why she was crying. The child answered that she was looking for her mother. 3 He decided to accompany the child to the paging station but to reach there he had to go out of the building and use an outside entrance. 4 However, on the way out he informed a security guard about the lost child. In fact, he said he requested the guard to watch the child while he went down to the paging section but the security guard refused to take custody of the child; thus, he was forced to carry the little girl outside the department store to reach the paging section. 5 But once outside, the child continued crying as he carried her to the ground floor. It was at this time that Lacanilao approached him and asked him why the child was

crying, at the same time telling him in a loud voice, "Kinidnap mo yata yan, ah!" 6 Bystanders and onlookers then started milling around him. Fearing that they would harm him and the child he decided to board a passenger jeep bound for Sta. Mesa. But when the jeepney driver refused to move the vehicle and his passengers started dispersing, Luartes took the child and went down the jeep. 7 By this time the crowd had already swelled and gotten more hostile so he panicked and sought the assistance of a motorcycle cop nearby. However, to his surprise, instead of lending him succor, the police arrested him for kidnapping. Rebutting the testimony of the accused, SPO2 Antonio Gabay, the motorcycle cop who assisted in the arrest of Luartes, narrated that in the afternoon of 19 December 1994 he saw Lacanilao chasing Luartes near Isetann Recto. Luartes, with a child in tow, and Lacanilao were running in his direction. He blocked the path of Luartes and asked him why he was running. The latter replied that there was nothing wrong and the child was his niece. 8 When Lacanilao informed SPO2 Gabay that Luartes was a kidnapper, he held on to Luartes and did not let him go. Gabay asked the child if she knew Luartes but she merely shook her head and cried, "Mama, mama!" 9 The accused together with the child was then taken back to Isetann where Evelyn Macairan was eagerly waiting for Junichi. Giving credence to the evidence of the prosecution, the trial court found Isagani Luartes y Pastor guilty of kidnapping three (3)-year old Junichi Macairan, penalized under Art. 267, par 4, of the Revised Penal Code, as amended, and sentenced him to reclusion perpetua with all the accessory penalties under the law. 10 Accused-appellant is now before us on appeal claiming that the evidence against him was too insufficient for his conviction. 11 He stresses that he does not question the motives of the prosecution witnesses who implicated him; 12

however, he maintains that this does not mean that their accusations are gospel truth as they only misconstrued his actuations in the afternoon of 19 December 1994. He insists that he did not kidnap Junichi but was merely helping her find her lost mother. 13 The essence of kidnapping under Art. 267 is the actual deprivation of the victim's liberty coupled with the intent of the accused to effect it. 14 Accused-appellant banks on the question of "intent" to neutralize the seemingly overwhelming evidence against him. He depicts himself simply as a good Samaritan who, despite the crowded department store, was the only one who showed pity on Junichi and who took pains to bring her back to her mother's arms. 15 According to him, it is appalling that a court, which in a criminal case is duty-bound to establish the guilt of the accused beyond reasonable doubt by clear and convincing evidence, based its conviction on mere suspicion and presumption. 16 We disagree. The insistence of accused-appellant that he was only helping Junichi find her mother without any intention to kidnap the child is belied by the evidence. His supposed lack of intent to take custody of the child away from her mother was completely discredited by the prosecution in the rebuttal testimony of SPO2 Gabay. Thus FISCAL CO Q: Now, Mr. Witness, Isagani Luartes claimed that . . . he was merely helping Junichi L. Macairan to locate her parent when you arrested him. What can you say about that? A: What I can say, is that, I arrested him . . . because of the suspicious actuation, sir . . . . You see, sir.. . . . I saw him running and he was carrying a child and also I saw a

traffic enforcer chasing after him, sir.. . . . when the accused was running, he was running towards me, so what I did (was) I stopped him and asked him why he was running, and he informed me that there was nothing wrong as the child was his niece, sir. Q: After that, what else transpired, if any? A: Lacanilao, the traffic enforcer who was chasing . . . him informed me that he was a kidnapper . . . . And at that time I held on to him, sir. . . . . He told me that he was going to make a phone call. I did not let him go and I asked the child whether she knows this person, and the child (shook) her head and then . . . started to cry . . . "mama, mama," sir. Q: After that, what else transpired, if any? A: So I brought them to the Security Guard of the Isetann, I requested the security guard . . . to page for, any parent who lost a child, and after fifteen (15) minutes the mother came over and then mother and child saw each other they embraced each other, sir (Emphasis supplied). 17 If indeed accused-appellant was trying to help the lost child, why then did he misrepresent himself as her uncle? He avers that when the crowd outside Isetann turned hostile, he alighted from the passenger jeepney and sought assistance

from SPO2 Gabay. However when the police officer questioned him why he was running, he did not mention anything about a lost child. Instead he claimed that the girl he was carrying was his niece. And, if his intention was only to help the child look for her mother, why did he have to board a passenger jeepney taking the child with him? The attempt on his part to mislead SPO2 Gabay destroyed whatever exculpating evidence he might have had in his favor. Thus the trial court correctly concluded Here credibility appears to be pivotal in the determination of the guilt or innocence of the accused. In any event, this court is more inclined to give credence to the versions of the prosecution witnesses than to the accuseds plain denial and alibi, that in taking away the girl, he was merely after her welfare. Except on purely sense of duty to tell the truth, the evidence on record is bereft of any showing to prove that Police Officers Francisco Lacanilao and SPO2 Gabay were prompted by any ulterior motive to falsify against the accused. 18 As for the nature of the crime committed, Art. 267 of the Revised Penal Code provides 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: 4. If the person kidnapped or detained shall be a minor, female or a public officer. The established fact is that on 19 December 1994 accusedappellant Luartes was caught in flagrante kidnapping Junichi Macairan, then three (3)-years old, outside Isetann Recto. The mother of the victim, Evelyn Macairan, testified in court that Junichi was missing and presumably under the control of accused-appellant for about thirty (30) minutes. Were it not for the alertness and swift action of traffic enforcer Lacanilao

and SPO2 Gabay accused-appellant would not have been apprehended and Junichi returned to her distraught mother. Thus, the crime clearly comes under par. 4 of Art. 267 of the Penal Code. The detention was committed by Luartes who was a private individual and the person kidnapped was a three (3)-year old minor. That his guilt has been established beyond reasonable doubt cannot be gainsaid. His positive identification by the prosecution witnesses who had no reason to prevaricate must prevail over his bare denials and totally unacceptable alibi. 19 WHEREFORE, the decision appealed from finding accusedappellant ISAGANI LUARTES Y PASTOR guilty beyond reasonable doubt of the crime of kidnapping a minor as defined and penalized under Art. 267, par. 4, of the Revised Penal Code, and sentencing him to reclusion perpetua with all the accessory penalties under the law, is AFFIRMED. Costs against accused-appellant.1wphi1.nt SO ORDERED. Puno, Mendoza and Quisumbing, JJ., concur. Buena, J., is on leave.

brought him at the corner of Aurora Boulevard and Boston street, this City, for the purpose of extorting ransom money in the amount of P20,000.00 Philippine currency, thereby detaining and depriving him of his liberty for more than three hours, to the damage and prejudice of the said offended party. On April 29, 1996 both accused were arraigned and both pleaded "not guilty". The accused Sotero Santos y Cruz filed a Motion to Dismiss the charge against him for failure of the private complainant to identify him as one of the malefactors. On February 28, 1997 the trial court granted the motion and acquitted accused Sotero Santos. The trial of the case proceeded only as against the accused-appellant Pavillare. The private complainant, an Indian national named Sukhjinder Singh testified in court that at about noon of February 12, 1996 while he was on his way back to his motorcycle parked at the corner of Scout Reyes and Roces Avenue, three men blocked his way. The one directly in front of him, whom he later identified as herein accused-appellant, accused him of having raped the woman inside the red Kia taxi cab parked nearby. Singh denied the accusation, the three men nevertheless forced him inside the taxi cab and brought him somewhere near St. Joseph's College in Quezon City. One of the abductors took the key to his motorcycle and drove it alongside the cab. Singh testified that the accusedappellant and his companions beat him up and demanded one hundred thousand pesos (P100,000.00) for his release but Singh told him he only had five thousand pesos (P5,000.00) with him. The accused-appellant forced him to give the phone numbers of his relatives so they can make their demand from them. Singh gave the phone number of his cousin Lakhvir Singh and the appellant made the call. The private complainant also stated in court that it was the accused-appellant who haggled with his cousin for the amount of the ransom.1 When the amount of twenty five thousand was agreed upon the complainant stated that the kidnappers took him to the corner of Aurora Boulevard and

G.R. No. 129970

April 5, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDUARDO PAVILLARE y VARONA and SOTERO SANTOS y CRUZ, accused, EDUARDO PAVILLARE y VARONA, accused-appellant. PER CURIAM: Before us is an appeal from the decision of the Regional Trial Court of Quezon City, Branch 219 in Criminal Case no. Q9665214 entitled People vs. Eduardo Pavillare y Varona, a prosecution for kidnapping for ransom. On March 14, 1996 the accused-appellant and his co-accused were criminally charged as follows: INFORMATION The undersigned accuses EDUARDO PAVILLARE Y VARONA and SOTERO SANTOS Y CRUZ of the crime of kidnapping for Ransom, committed as follows: That on or about the 12th day of February, 1996, in Quezon City, Philippines, the above-named accused, conspiring, confederating with another person, whose true name, identity and whereabouts had not as yet been ascertained and mutually helping one another, by means of force, violence and/or intimidation did then and there, willfully, unlawfully and feloniously kidnap one SUKHJINDER SINGH at the corner of Scout Reyes and Roces Avenue, this City, and thereafter

Boston streets and parked the cab there. The accusedappellant and two of the male abductors alighted while the driver and their lady companion stayed with the complainant in the car. When the complainant turned to see where the accused-appellant and his companions went he saw his uncle and his cousin in a motorcycle and together with the kidnappers they entered a mini-grocery. Later the kidnappers brought the complainant to the mini-grocery where he met his relatives. The ransom money was handed to the appellant by the complainant's cousin, after which the accusedappellant counted the money and then, together with his cohorts, immediately left the scene.2 Lakhvir Singh, the complainant's cousin, testified in court that the kidnappers made about three to four phone calls a few minutes apart. The kidnappers allowed him to talk to the private complainant to prove that he is indeed in their custody. The kidnappers also told Lakhvir that his cousin, Sukhjinder, raped their companion and threatened that unless Lakhvir pays one hundred thousand pesos for Sukhjinder's release "tutuluyan namin ito". Lakhvir told the kidnappers he does not have that much money and after some haggling the kidnappers settled for twenty five thousand pesos.3 The kidnappers also gave instructions to deliver the money outside the Aurora Boulevard branch of the Land Bank near the old Arcega's movie house. Lakhvir stated in court that he did as instructed. When he and another relative reached the designated place three men approached him and one of them, whom he identified in court as the accused-appellant herein, asked him "Ano dala mo ang pera?" Lakhvir said "yes" but he refused to give the money until he saw his cousin. One of the kidnappers told him to follow them and they proceeded to a mini-grocery nearby. A few minutes later one of the kidnappers came with his cousin. Lakhvir handed the money to the accusedappellant who counted it before leaving with his companions.4 SPO1 Eduardo Frias testified for the prosecution that he was the police officer who took the sworn statement of the private complainant on February 14, 1996 pertaining to the February 12, 1996 incident.5 When the accused-appellant

was apprehended in connection with another case involving the kidnapping of another Indian national the private complainant herein again showed up at the police station on March 11, 1996 and identified the accused-appellant as one of his kidnappers. Another sworn statement was executed by the private complainant after he identified the accusedappellant at the police station. 6 For the defense, the accused-appellant testified that on the whole day of February 12, 1996, the alleged date of the incident, he was at the job site in Novaliches where he had contracted to build the house of a client and that he could not have been anywhere near Roces Avenue at the time the complainant was allegedly kidnapped.7 One of his employees, an electrician, testified that the accused-appellant was indeed at the job site in Novaliches the whole day of February 12, 1996. 8 On July 15, 1997 the trial court rendered judgment as follows: WHEREFORE, finding EDUARDO PAVILLARE guilty beyond reasonable doubt of having committed the crime of kidnapping for the purpose of ransom, the Court hereby sentences him to suffer the penalty of Death; to indemnify the private complainant in the amount of P20,000.00, as actual damages, with interest at 6% percent per annum from February 12, 1996; to pay him the amount of P50,000.00 as moral damages; and to pay the costs. The Branch clerk of Court is hereby directed to immediately transmit the entire records of the case to the Supreme Court for automatic review.9 This case is before us on automatic review. The accused-appellant Pavillare prays for an acquittal based on reasonable doubt. On March 10, 1996 the accusedappellant was apprehended in connection with the kidnapping of another Indian national. While under police custody the appellant was required to stand in a police line-

up where he was supposedly identified by the private complainant as one of his abductors. Five separate charges arising from five separate incidents of kidnapping, all of whom were Indian nationals, were filed against him. He claims that he was identified by the private complainant as one of his abductors because the Indians needed a "scapegoat" for the other four cases of kidnapping of Indian nationals then pending. The appellant argues that the private complainant could not identify his captors by himself which is shown by the inconsistencies in his testimony and by the improper suggestion made by the investigating police officer pointing to the accused-appellant as one of the malefactors. In court the private complainant stated that he described his abductors to the police investigator while the latter typed his sworn statement. He said that two of the abductors look like policemen, the third one was "tall, a little bit aged" and the other one was the driver. Their female companion was pretty. Pavillare points out however, that the sworn statement given by the private complainant does not contain a physical description of the kidnappers and that SPO1 Frias, who took the complainant's statement, testified in court that the complainant described one of his abductors as short, bejeweled and with a pock marked face. The different descriptions allegedly given by the private complainant and the absence of a physical description of the kidnappers in his sworn statement supports the accused-appellant's contention that the complainant could not describe his abductors. Pavillare contends that his arrest in connection with a different case for the kidnapping of another Indian national provided the complainant an improper suggestion that he was indeed one of the culprits in this case. The appellant claims that SPO1 Frias pointed to him and conversed with the private complainant before the latter was asked to identify the kidnappers. The time interval from the date of the incident on February 12, 1996 up to the day the accusedappellant was identified at the police line-up on March 11, 1996 further weakened the complainant's vague recognition of the culprits. Pavillare finally argues that he should not have been convicted of kidnapping for ransom but only of simple robbery as it is borne by the undisputed facts that the

offenders were motivated by an intent to gain and not to deprive the complainant of his liberty. The money demanded by the offenders was not ransom money but one in the nature of a bribe to drop the accusation for rape of their lady companion. The Solicitor-General filed brief praying for the affirmance in toto of the appealed decision. The appellee contends that in court the private complainant unhesitatingly and consistently identified the accused-appellant Pavillare as one of the kidnappers. Throughout his narration of the incident in court the complainant referred to Pavillare as one of the kidnappers because he was the one who made the phone call and the one who received the ransom money. The complainant had more than adequate opportunity to observe his abductors and he testified in court that Pavillare is one of them. As a sign of the complainant's candor, he admitted in court that he does not recognize the other co-accused, Sotero Santos, as one of his abductors and for which reason the case was dismissed against him. The complainant's failure to state an accurate description of the kidnappers in his sworn statement does not belie his identification of Pavillare in court as it is the general rule that affidavits are often inaccurate and incomplete. The argument of the accused-appellant that his identification in the police line-up was made with improper motive either from the other Indian nationals who were at the police station or from SPO1 Frias is without evidentiary basis. Moreover, the complainant's testimony is corroborated by the testimony of his cousin who met the kidnappers and handed over the ransom money to them. The trial court did not err in giving credence to the complainant's identification of Pavillare as one of the abductors. The Solicitor-General further contends that the accusedappellant's alibi that he in Novaliches when the crime was committed cannot stand against the positive identification of two witnesses and that his alibi does not make it physically impossible for him to be at the crime scene at the time it happened. As regards accused-appellant's plea to be convicted instead of simple robbery is without legal nor factual basis. The complainant was restrained of his liberty

even if only for a few hours and his captors demanded money for his release which in fact they did after the ransom money was paid. Whether or not the kidnappers only wanted money from the complainant the manner by which they compelled him to give money, i.e. by restraining his liberty until the ransom money was paid, constitutes kidnapping for ransom. Finally, the submission that the offenders demanded a bribe and not ransom money is likewise unfounded. There is no evidence that any one of the kidnappers was a public officer in the performance of his duties when they demanded money from the complainant in exchange for his liberty. Accused-appellant Pavillare filed Reply brief to reiterate his contention that the prosecution did not controvert his testimony to the effect that the complainant could not recognize his abductors and that it was SPO1 Frias who pinpointed him to the private complainant as one of the malefactors. Pavillare cites the complainant's failure to identify his own relative who met him at the police station after the arrest of the accused-appellant and argues that considering that the complainant was held captive only for about two hours and the interval of almost one month from the day of the incident up to the time the accused-appellant was identified at the police line-up, the complainant was deprived of any reliable recollection of his captors. The complainant's failure to give a physical description of the abductors when he gave a sworn statement to the police two days after the incident supports the accused-appellant's contention that the complainant could not identify his captors. It is also claimed that the improper identification of the accused-appellant at the police line-up without the assistance of counsel renders the said identification, including that made in court, inadmissible in evidence. The appeal is without merit. The accused-appellant's defense that the identification made by the private complainant in the police line-up is inadmissible because the appellant stood at the line-up without the assistance of counsel is without merit.

Sec. 12 (1) Art III of the Constitution states that "Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." Thus the prohibition for custodial investigation conducted without the assistance of counsel. Any evidence obtained in violation of the constitutional mandate is inadmissible in evidence. 10 The prohibition however, does not extend to a person in a police line-up because that stage of an investigation is not yet a part of custodial investigation. 11 It has been repeatedly held that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission. 12 The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature. 13 It has also been held that an uncounseled identification at the police line-up does not preclude the admissibility of an in-court identification. 14 The identification made by the private complainant in the police line-up pointing to Pavillare as one of his abductors is admissible in evidence although the accused-appellant was not assisted by counsel. In court, the private complainant positively identified Paviallare as one of his captors and testified as follows: Q: Were you able to recognize the faces of the men and woman who abducted you on the afternoon of February 12, 1996? A: Yes, sir I can recognize if I see them again. Q: If you see them in court will you be able to identify them?

A: Yes, sir. Q: Please point to them if the accused are inside the court room? A: That man, sir. INTERPRETER: Witness pointing at a man seated inside the court room and when asked to identify himself he gave his name as Eduardo Pavillare. ATTY. CRUZ: Q: Other than the accused Pavillare, do you recognize anybody else in this court room if among those who abducted you in the afternoon of February 12, 1996? A: None, sir. Q: Tell us how were you abducted by the accused Pavillare and his companions in that particular date in the afternoon of February 12, 1996? A: While I was returning to my motorcycle, they blocked my way and asked for my name, sir. ATTY. CRUZ: Q: Who blocked your way and asked for your name? A: He was infront of his companions, sir. INTERPRETER: Witness referring to accused earlier identified as Eduardo Pavillare. xxx xxx xxx

ATTY. CRUZ: Q: If you know, Mr. Singh, where were you taken by the accused after they abducted you at the corner of Roces Avenue and Scout Reyes St., Quezon City? A: It was a deserted street somewhere in St. Joseph College, Quezon City, sir. Q: After you reached that deserted place, what happened next, if any? A: They asked me for P100,000,00 and I told them that I have only P5,000.00 and they told me that if I give P100,000.00 they will let me go, sir. Q: Who demanded the amount of P100,000.00 from you? WITNESS: A: He is the one, sir. INTERPRETER: Again, witness pointing to the accused earlier identified as Pavillare. xxx ATTY. CRUZ: Q: Could you tell us what did your abductors tell to Lakhvir while they are talking over the telephone? A: They told him that they should pay the amount of money for my release, sir. xxx xxx

Q: Incidentally, can you tell us who among your abductors who actually talked to Lakvir over the telephone? A: He is the one, sir. INTERPRETER: Again, witness is referring to accused earlier identified as Pavillare. ATTY. CRUZ: Q: Why do you know that it was the accused Pavillare who was talking to Lakhvir over the telephone? A: Because I was near him and I saw him talking to Lakhvir, sir. xxx ATTY. CRUZ: Q: Where did the two of you go? A: Inside the mini-grocery, sir. Q: After you went inside this mini-grocery, what happened next, if any? A: I saw my cousin Lakhvir. He asked me if I am okey and I told him that they bit me up but I am still fine, sir. Q: After you told your cousin that you are okey except for the beating that you got but you are fine, what transpired next, if any? A: Lakhvir gave the P20,000.00, sir. xxx xxx

ATTY. CRUZ: Q: To whom did Lakhvir handed the P20,000.00? A: To him sir. INTERPRETER: Witness pointed to the accused Pavillare earlier identified. ATTY. CRUZ: Q: Why do you know that only P20,000.00 was handed over by accused Pavillare? A: Because they counted the money and they complained about it, sir. Q: Who counted the money? A: He was the one who counted the money, sir. INTERPRETER: Witness pointing to accused Pavillare earlier identified. ATTY. CRUZ: Q: Were you present when Pavillare counted the money? A: Yes, sir. Q: After Pavillare got the P20,000.00, what happened next, if any? A: They left immediately and they left me too, and we went to get my motorcycle, sir. 15

On cross-examination the complainant stood firm on his identification of the accused-appellant as one of the abductors. He testified: ATTY. MALLABO: Q: You said that at approximately 12:00 o'clock noon of February 12, 1996 while you are going back to your motorcycle you were blocked by four persons, is that correct? ATTY. CRUZ: Misleading, he said 3 persons, your Honor. COURT: Reform. ATTY. MALLABO: Q: You were blocked by 3 persons, is that correct? A: Yes, sir. Q: Who was the person immediately in front of you when you were blocked? A: He was the one, sir. INTERPRETER: Witness pointing to accused Eduardo Pavillare which was earlier identified. ATTY. MALLABO:

A: They were behind me, sir. ATTY. MALLABO: Q: What was the distance if you can tell us? A: Almost together and then when they asked me my name I replied and they hold my arms, sir. Q: Who hold your arms? A: He was the first, sir. INTERPRETER: Witness pointed to accused Eduardo Pavillare which was identified earlier. xxx ATTY. MALLABO: Q: You said that there were 5 persons who abducted you? A: Yes, sir. 4 male and one female. Q: On March 11, 1996 your cousin informed you or your friend informed you that there were persons apprehended because also of kidnapping incident? A: Yes, sir. There were 4 of them arrested and when I went to see them I only recognized one of them, sir. ATTY. MALLABO: Q: Who was that person? xxx xxx

Q: What about the two (2) other persons? A: He is the one, sir. WITNESS:

INTERPRETER: Witness pointing to accused Eduardo Pavillare. ATTY. MALLABO: That would be all for the witness, your Honor. COURT: Any redirect? ATTY. CRUZ: Few redirect, your Honor. ATTY. CRUZ: Q: Mr. Witness, before you went to the police station on March 11, 1996 you were aware of how many suspects were in custody of kidnapping of Gormel, is it not? A: Yes, sir they were 4 of them. Q: You were aware that 4 persons were arrested for the kidnapping of your friend Gormel? A: Yes, sir. Q: These 4 people were shown to you, were they not? A: Yes, sir. ATTY. CRUZ: Q: But when you were asked to identify who among them were involved in your kidnapping you only pointed one of them?

A: Yes, sir. Q: You did not point to the other accused? A: No, sir. Q: The only one whom you pointed as being involved in your kidnapping was none other than the person of the accused Pavillare? A: Yes, sir.
16

Moreover, the complainant's cousin Lakhvir Singh who met the kidnappers to pay the ransom money corroborated the complainant's identification of the accused-appellant Pavillare. Lakhvir Singh testified as follows: Q: After reaching the designated area somewhere along Aurora Boulevard, what happened next, if any? A: As we parked our motorcycle near Land Bank, the kidnappers immediately approached us, sir. Q: How many kidnappers approached you? A: Three (3) of them, sir. ATTY. CRUZ: Q: How were you able to know that they are the kidnappers? A: Because when they approached us one of them said: "Ano dala mo and pera?" Q: Tell us, were you able to recognize the faces of these three persons who approached you and demanded to you whether you brought the money? A: Yes, sir.

Q: If you see anyone inside the courtroom, please point to him. INTERPRETER: Witness pointing at a man sitting inside the courtroom and when asked to identify himself, he gave his name as EDUARDO PAVILLARE. ATTY. CRUZ: Q: After Pavillare demanded to you whether you brought with you the money, what did you do next, if any? A: I told them "I have the money with me but I would not hand the money to you until I see Sukhjinder Singh." Q: What was the response of the accused Pavillare after you told him that Sukhjinder Singh be first shown to you before you turn over the money? A: One of them told us to follow him and they would bring Sukhjinder Singh, sir. Q: From that place, where did you go if you can still recall? A: We proceeded to a small grocery store near Land Bank, sir. Q: After going inside this grocery store near Land Bank, tell us what happened next, if any? A: After a few minutes, one of the kidnappers arrived together with Sukhjinder Singh, sir. ATTY. CRUZ:

Q: After you saw Sukhjinder Singh together with one of his kidnappers, what did you do next, if any? A: I immediately approached Sukhjinder Singh and I asked him if he was hurt by the kidnappers and he said "yes but I am now okey." Q: After Sukhjinder confirmed to you that he was previously beaten and that he was already okey at that time, what did you do next, if any? WITNESS: A: After that, one of the kidnappers said: "Andiyan na ang tao ninyo ibinigay mo sa akin ang pera". ATTY. CRUZ: Q: Who among the kidnappers who said that? A: That person, sir. INTERPRETER: Witness pointing to the accused earlier identified as Eduardo Pavillare. ATTY. CRUZ: Q: After Pavillare demanded that you turn-over to him the money, what did you do next, if any? A: I gave him the money, sir. Q: When you said "him", to whom are you referring to? A: To him, sir. INTERPRETER:

Witness pointing to accused earlier identified as Eduardo Pavillare. ATTY. CRUZ: If you recall, how many money all in all did you give to Eduardo Pavillare that afternoon of February 12, 1996? A: P20,000.00, sir. xxx
17

xxx

xxx

kidnappers prevails over it. The appellant's employee who testified to corroborate his alibi only stated that in the month of February 1996 the accused-appellant was at the Novaliches job site everyday. 18 The trial court properly took judicial notice that it will take only a few hours drive from Novaliches, where the accused-appellant claimed to be on the day of the incident, to Roces Ave., in Quezon City, where the complainant was kidnapped. 19 Absent any competent proof that Pavillare could not have been at the scene of the crime at the time and day it was committed, the trial court correctly denied weight and credence to the appellant's alibi. Pavillare's argument that the complainant could not have identified his abductors were it not for the improper suggestion made by the police investigator is based on the bare and uncorroborated allegation of the accused-appellant himself. The police investigator was not confronted with this accusation 20 and the defense did not present any evidence to support it. It is on record that when Pavillare's counsel made an attempt to question the police investigator, SPO1 Frias, on a matter not covered by the direct examination, i.e., where SPO1 Frias recorded the physical description given by the complainant of his abductors, the trial court suggested that the defense may later call SPO1 Frias to the stand as a defense witness apparently to give the defense a chance to prove its allegation that the complainant did not give any physical description of his abductors and that the identification at the police line-up is tainted with an improper suggestion. 21 The defense counsel never called SPO1 Frias to the stand. The appellant must prove the veracity of his own defense 22 and the prosecution could not controvert what was not presented in evidence. In the same vein, the defense did not present any competent proof that Pavillare was identified by the complainant only as a scapegoat for the four other kidnapping cases committed against other Indian nationals. The cited variance between the complainant's testimony in court and his affidavit on whether or not the complainant gave a physical description of his abductors before the police investigator pertains to a minor detail. Both the complainant and police investigator SPO1 Frias testified that the former gave a physical description of the abductors to the police.

We find that the trial court did not err in giving due weight and credence to the identification in open court of the accused-appellant by the private complainant and his cousin as one of the kidnappers. Both witnesses had ample opportunity to observe the kidnappers and to remember their faces. The complainant had close contact with the kidnappers when he was abducted and beaten up, and later when the kidnappers haggled on the amount of the ransom money. His cousin met Pavillare face to face and actually dealt with him when he paid the ransom money. The twohour period that the complainant was in close contact with his abductors was sufficient for him to have a recollection of their physical appearance. Complainant admitted in court that he would recognize his abductors if he sees them again and upon seeing Pavillare he immediately recognized him as one of the malefactors as he remembers him as the one who blocked his way, beat him up, haggled with the complainant's cousin and received the ransom money. As an indicium of candor the private complainant admitted that he does not recognize the co-accused, Sotero Santos for which reason the case was dismissed against him. It bears repeating that the finding of the trial court as to the credibility of witnesses is given utmost respect and as a rule will not be disturbed on appeal because it had the opportunity to closely observe the demeanor of the witness in court. As regards the alibi forwarded by the appellant, we find that the positive identification made by two eyewitnesses for the prosecution pointing to the appellant as one of the

The complainant testified that he gave the physical description of the kidnappers while the police typed his affidavit but no such physical description of the kidnappers is stated in the affidavit. On the other hand, the police investigator testified that the said description was entered in the police logbook. The defense never required SPO1 Frias to produce the logbook in court to ascertain whether such a description was given during the investigation. As a rule, variance between the private complainant's affidavit and his testimony in court, as long as it does not deviate from the nature of the crime as stated in the Information, does not weaken the credibility of the testimony in court. 23 Finally, the accused-appellant's argument that he should have been convicted of simple robbery and not kidnapping with ransom because the evidence proves that the prime motive of the accused-appellant and his companions is to obtain money and that the complainant was detained only for two hours, are both unmeritorious. Art. 267 of the Revised Penal Code states: Art. 267. Kidnapping and serious illegal detention . any private individual who shall kidnap or detain another, or in any other manner deprive him of liberty, shall suffer the penalty of reclusion perpetua to death; 1. If the kidnapping or detention shall have lasted more than three 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; 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 the subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. 24 The testimonies of both the private complainant and his cousin are replete with positive declarations that the accused-appellant and his companions demanded money for the complainant's release. The pretense that the money was supposedly in exchange for the dropping of the charges for rape is not supported by the evidence. The complainant's cousin testified that at the agreed drop-off point Pavillare demanded the ransom money and stated, "Andiyan na ang tao ninyo ibigay mo sa akinang pera". The accused-appellant released the complainant when the money was handed over to him and after counting the money Pavillare and his companions immediately left the scene. This clearly indicated that the payment of the ransom money is in exchange for the liberty of the private complainant. The death penalty was properly imposed by the trial court. 25 The duration of the detention even if only for a few hours does not alter the nature of the crime committed. 1a\^/phi1 The crime of kidnapping is committed by depriving the victim of liberty whether he is placed in an enclosure or simply restrained from going home. 26 As squarely expressed in Article 267, above-quoted the penalty of death is imposable where the detention is committed for the purpose of extorting ransom, and the duration of the detention is not material. Four Members of the court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty. Nonetheless they submit to the ruling of the majority

of this Court i.e., that the law is constitutional and the death penalty should be imposed in this case. WHEREFORE, the decision of the Regional Trial Court of Quezon City in Criminal Case No. Q96-65214 finding the accused-appellant Eduardo Pavillare y Varona guilty of kidnapping for ransom and imposing the DEATH penalty and the awards for actual and moral damages is AFFIRMED in toto. SO ORDERED.1wphi1.nt Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.

police investigation and GAMAD was also shot dead after the re-investigation conducted by the Office of the Provincial Fiscal of San Jose, Antique. Based on the records of this case, LACANIETA and BALLENAS were already charged with murder at the Regional Trial Court, Branch 12 of San Jose, Antique. Since BALLENAS had already been arraigned for murder, an Information for Forcible Abduction with Rape was filed on October 12, 1987 against BALLENAS and LACANIETA before the same court. LACANIETA thereafter posted bail, but he eventually absconded. The Information was then amended on June 19, 1989 to read as follows: At the instance of the mother of the deceased offended party, Wilma Tayo, who has subscribed and sworn to a complaint attached to the records of the above-entitled cases, the undersigned Assistant Provincial Prosecutor accuses JERRY BALLENAS alias "MARLON MARQUEZ" of the crime of forcible abduction with rape committed as follows: That on or about the 20th day of March, 1987 in the Municipality of Sibalom, Province of Antique, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused together with Cesar Lacanieta who is still at large and Alberto Salvador and Carlito Gamad, both deceased, being then armed with gun and knife and by means of force and intimidation and with lewd designs, conspiring, confederating together and mutually helping one another, did, then and there willfully, unlawfully and feloniously abduct and carry away Wilma Tayo at a gun point (sic) to an uninhabited place and while there, by means of force and intimidation, have carnal knowledge of the said Wilma Tayo against the latter's will. Contrary to the provisions of article 335 of the Revised Penal Code in relation to Article 342 of the same Code.1

G.R. No. 124299

April 12, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CESAR LACANIETA alias "Boy Alog", JERRY BALLENAS alias "Marlon Marquez" and Carlito Gamad, accused, JERRY BALLENAS, accused-appellant.

GONZAGA-REYES, J.: Consorcia Tayo (Consorcia) claims that her daughter, 19year-old WILMA TAYO (WILMA) was abducted at gunpoint on March 20, 1987. WILMA was found dead the next day, her body bore signs that she was first raped then brutally stabbed ten times. Four persons were suspected as perpetrators of the crime: JERRY BALLENAS (BALLENAS) alias MARLON MARQUEZ, CESAR LACANIETA (LACANIETA) alias BOY ALOG, ALBERTO SALVADOR (SALVADOR) and CARLITO GAMAD (GAMAD). SALVADOR was shot dead during the

Trial fiscal Juan C. Mission, Jr. was of the opinion that the proper charge against BALLENAS is forcible abduction with rape "because an independent act of forcible abduction preceded the rape and murder of the deceased Wilma Tayo," and not the special complex crime of rape with homicide. 2 The arraignment of BALLENAS for forcible abduction with rape came belatedly because it was only after the case was already submitted for decision when the trial court discovered that BALLENAS had not yet been arraigned. Both the prosecution and defense then agreed to arraign BALLENAS and to consider all the evidence earlier presented as reproduced. BALLENAS was accordingly arraigned on the Amended Information on February 18, 1992; he pleaded not guilty. The evidence for the prosecution consisted of the testimonies of Consorcia and Florencio Millones (Florencio) and Exhibits "A", "B", "C", and "D" as documentary evidence, while the defense presented BALLENAS as its lone witness. The version of the prosecution as summarized by the trial court is as follows: On March 20, 1987 about 7 o'clock in the evening, the Wilma Tayo (sic) and her mother Mrs. Consorcia Tayo were in their house at Sitio Bulho, Cubay-Sermon, Sibalom, Antique. They were about to eat supper when someone called to them asking to light a cigarette. Wilma Tayo asked who was calling and the answer was "I am Junior, let me light my cigarette". Wiima Tayo opened the door slightly and there stood accused Jerry Ballenas alias Marlon Marquez. Accused did not light his cigarette but instead blew the gas lamp and put out the light. He held Wilma Tayo by the wrist. Accused Jerry Ballenas pointed a short firearm to Wilma Tayo and Consorcia Tayo. Accused told Wilma Tayo to accompany him to Maria Leong-on, his girlfriend. Wilma Tayo refused as they were about to eat supper. Consorcia Tayo also told her daughter, Wilma Tayo not go out (sic) because it was already dark. Accused Jerry Ballenas forced Wilma Tayo to go

out with him and struck the hand of Consorcia Tayo and pointed the handgun at her. Accused held Wilma Tayo tightly and took her away. Because of the abduction, Consorcia Tayo sought the help of a neighbor, Andres Mallorca, whose house is about 20 meters away from her house but to no avail, Andres Mallorca shut the door on her for fear of Jerry Ballenas as the letter is known as a member of the dreaded Sparrow Unit of the New People's Army. The following morning, Consorcia Tayo reported the abduction of Wilma Tayo to her son-in-law who is a member of the Integrated National Police. She learned from Aurelio Gamad that her daughter Wilma Tayo was already dead. The police then proceeded to the scene of the incident. At the time Wilma Tayo was abducted, she was 19 years old. She was single and a third year student in the Polytechnic State College of Antique, Sibalom, Antique. Consorcia Tayo spent P30,000.00 for the funeral of Wilma Tayo. Consorcia was shocked and she felt pain with the death of her only daughter Wilma Tayo. To Consorcia Tayo no amount of money could compensate the death of her daughter Wilma Tayo whom they loved so much. BALLENAS disavows any participation in the abduction, rape and killing of WILMA and offered this version, viz: In the afternoon of March 20, 1987, at about past 4:00 p.m., he was in the house of CARLITO GAMAD. When darkness came, CARLITO asked him to accompany CEZAR LACANIETA (a boarder of the GAMAD's), to the house of victim WILMA TAYO. Victim was the girlfriend of LACANIETA. On the way, LACANIETA told him of his plan to elope with victim, and asked him to talk to her. He proceeded to the house of victim, while LACANIETA was left behind near the irrigation canal. Upon

reaching the house of victim, he called out and the mother answered his call and then victim came out of the house. He told victim that LACANIETA had something to tell her and that he was waiting for her at the irrigation canal. Both of them proceeded to where LACANIETA was waiting and after he led victim to LACANIETA, he went home (T.S.N., pp. 7-10, August 9, 1990).3 On May 29, 1992, the Regional Trial Court, Branch 12 of San Jose, Antique rendered its Decision4 finding BALLENAS guilty of forcible abduction with rape, the judgment declares: WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding the accused Jerry Ballenas alias Marlon Marquez GUILTY beyond reasonable doubt of the crime of Forcible Abduction with Rape punished under Article 335 of the Revised Penal Code in relation to Article 342 and Article 48 of the same Code with reclusion perpetua to death by reason of the use of a firearm by accused Jerry Ballenas in the abduction of Wilma Tayo. And applying Article 63 of the Revised Penal Code, the penalty that should be imposed should be the greater penalty of death there being two aggravating circumstances but because the present Constitution prohibits the imposition of the death penalty accused Jerry Ballenas is hereby sentenced to suffer a prison term of reclusion perpetua or life imprisonment and to suffer the accessory penalty provided for by law and he is ordered to indemnify the heirs of the deceased Wilma Tayo the sum of P50,000.00 and to pay Consorcia Tayo, the sum of P30,000.00 for the funeral expenses incurred by her for the funeral of the deceased Wilma Tayo and to pay the cost. SO ORDERED.5 In this appeal, BALLENAS questions the quoted decision on these grounds:

I. THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF FORCIBLE ABDUCTION WITH RAPE. II. THE COURT A QUO ERRED IN ORDERING ACCUSEDAPPELLANT TO INDEMNIFY THE HEIRS OF VICTIM IN THE AMOUNT OF P50,000.00, THE SUM OF P30,000.00 FOR FUNERAL EXPENSES AND TO PAY THE COSTS. 6 This Court is convinced that the trial court did not err in concluding that BALLENAS is guilty beyond reasonable doubt of the forcible abduction and rape of WILMA. In asserting his innocence, BALLENAS foists the defense of alibi, a defense that has long been considered as intrinsically the weakest of all defenses.7 Basic is the rule that the defense of alibi should be rejected when the identity of the accused has been sufficiently and positively established by eyewitnesses to the crime because alibi cannot prevail over the positive identification of the accused by the prosecution witnesses. 8 In this case, Consorcia, the mother of WILMA, positively identified BALLENAS as the person who went to her house and abducted her daughter at gunpoint that fateful night. Moreover, the testimony of Florencio fortifies the theory of the prosecution that after the abduction of WILMA, BALLENAS together with LACANIETA, SALVADOR and GAMAD raped and stabbed WILMA. According to Florencio, he was passing through the street of Barangay Catmon, Sibalom, antique when he saw "Boy Alog" (LACANIETA) lying on top of WILMA. 9 The hands of WILMA were then held down by BALLENAS and SALVADOR. 10 Surprised by the presence of Florencio, LACANIETA stood up and told the former that they were just having a "happy-happy". 11 Florencio then left and after reaching three brazas, he hid to see what the group was up to. 12 Florencio testified that he thereafter saw four men take turns in ravishing and stabbing WILMA. 13 The following

testimony of Florencio establishes the participation of BALLENAS in the crime charged: Q: Mr. Millones, you said that you are a resident of Barangay Catmon, Sibalom, Antique, how long have you been a resident of that plade? A: I was born there. Q: Are you still a resident in that place? A: Yes, sir. Q: On March 20, 1987, were you still a resident of that place? A: Yes, sir. Q: On that day, about 7:00 o'clock in the evening can you recall where you were? A: Yes, sir, I was walking on the street of Barangay Catmon, Sibalom, Antique and it was already past 7:00 o'clock in the evening. Q: Where did you come from? A: I came from Durog leading to Catmon. Q: Where were you going then? A: I was intending to go to the house of my deceased mother whose wake falls on that night. Q: While walking from Durog towards your house, can you recall if you were able to observe any unusual incident? A: Yes, sir.

Q: What was that about? A: While I was in the street of Brgy. Catmon, Sibalom Antique, I saw four persons, three are squatting, while the other one is lying flat on his stomach and I thought there (sic) were all drinking. Q: As you pass by these four persons, did you start any conversation with them? A: While I was approaching them and when I reach that place, the fellow who was lying flat on his stomach, stood up and told me that they were just having a happy happy so I will just pass by my way. Q: What else did you see when he stood up? A: When he stood up, he told me I will proceed on my way and I saw that the three persons were holding a girl. Q: You said they were holding a girl, do you know that girl? A: Yes, sir, Wilma Tayo, daughter of Consorcia Tayo. Q: Aside from Marlon, do you know that three other persons? A: Yes, sir. Q: Who were they? A: They were Alberto Salvador, Carlito Gamad, Marlon and Boy Alog. Q: And who was that person who was lying flat on his stomach? A: Boy Alog.

Q: If these three persons are inside the courtroom, could you please point to them? A: Only one is here inside the courtroom.

A: The legs are joined to the ground in V-position. Q: Do you know if Wilma Tayo saw you pass by? ATTY. ABIERA:

Q: And who was that? Incompetent, your Honor. A: Jerry Ballenas. COURT: INTERPRETER: Sustained. At this juncture, the witness pointed to a man seated inside the courtroom and when asked by the Interpreter what his name is, identified himself as Jerry Ballenas. Q You said that three persons were holding on to Wilma Tayo, will you please tell us who among these three persons were holding Wilma Tayo and on what part of the body? A: Carlito Gamad was holding the hands of Wilma Tayo and the hands of the girl are both stretched above his head. Q: How about the two other persons? A: While Jerry Ballenas and Alberto Salvador, Jr. were holding on each of the leg of the girl. Q: How did these Jerry Ballenas and Alberto Salvador, how were they holding the legs of Wilma Tayo. A: Wilma was lying flat on his (sic) back on the street and each of these persons were holding on each of the leg of Wilma Tayo. Q: Are the legs of Wilma Tayo held fell (sic) to the ground or raised up? FISCAL MISSION: After you were told that they were just there for a happy happy, what did you do? A: I told them I will pass my way. Q: After that, what did you do? A: I walk farther and observe. Q: How far did you walk and observe these persons? A: I walk from the place about three brazas so that I could observe what they were doing. Q: Will you please demonstrate to the court by pointing inside the courtroom how far more or less is three brazas? INTERPRETER: Witness is pointing to the wall of the other courtroom of Branch 11 which is more or less 8 to 9 brazas. FISCAL MISSION:

Q: Now, upon reaching that place about 8 brazas to make some observation, what did you do? A: I hid and observe what they were doing. Q: Did you observe anything else? A: Yes, sir. Q: What did you observe? A: I saw them. These four took turns in raping the girl. Q: Then what else did you see? A: After raping Wilma Tayo, they also took turns in stabbing her. Q: How long did you observe the group? A: I could not determine the length of time I stayed in that place because I do not have a watch. Q: After making such observation, what did you do? A: After I have witnessed that horrifying incident, I just proceed to the house of my deceased mother. 14 The autopsy report made by Dr. Julito V. Osunero, Chief of the Ramon Maza Memorial District Hospital, Sibalom, Antique confirms the testimony of Florencio. The report contains these findings: 1. Stab wound, 1 inch long left side Neck, point of entrance and point of exit, Right side neck thru and thru. 2. Stab wound, 1 inch long left side Neck, point of entrance and point of exit, Right side neck thru and thru.

3. Stab wound, 1 inch long Left side neck and point of exit Right side Neck thru and thru, cutting carotid and jugular vessels. 4. Stab wound, 1 inch long, Epigastric Area perforating Abdominal Cavity perforating Liver. 5. Stab wound, 1 inch diameter perforating Abdominal Cavity perforating Stomach. 6. Stab wound, 1 inch long, Right anterior Chest perforating thoracic Cavity penetrating Right Lung. 7. Stab wound, 1 inch long, Right Lumber Area perforating Abdominal Cavity penetrating Kidney. 8. Stab wound, 1 inch long, Lumbar Area Right, perforating Abdominal Cavity. 9. Stab wound, Inter-scapular, 1 inch long, muscle depth. 10. Stab wound, Inter-scapular, 1 inch long, muscle depth. 11. Contusion both thigh, 2 inches diameter, left and 3 inches diameter, right. 12. Hymen Lacerations 3:00 o'clock and 9:00 o'clock, Fresh. 15 The cause of the death of WILMA is reported as due to hemorrhage secondary to wounds on the neck, chest, abdomen and back. 16 The trial court opined that the contusions on the thighs of WILMA show that her legs were forcibly set apart to facilitate the rape of WILMA. That WILMA was raped is evidenced by hymenal lacerations, still found fresh on March 21, 1987, the day the autopsy was conducted. We agree with the trial court that based on the evidence, it could readily be concluded

that the perpetrators stabbed WILMA several times after the commission of the rape. 17 In a desperate attempt to reverse the decision of the trial court, BALLENAS impresses upon this Court his theory that if he indeed committed the crime charged, he would not have exposed himself to Consorcia at the time that WILMA was abducted. 18 BALLENAS also points out that his return to Catmon the following Monday after the death of WILMA and on which date he was arrested, belies his participation in the despicable crime. 19 BALLENAS argues that if he was guilty of the crime, he would not have returned to Catmon to face the possibility of being arrested since the victim was with him on the night of March 20, 1987. 20 We are not persuaded. A telling detail in this case is the fact that the mother of the victim witnessed first hand the abduction of her daughter at gunpoint. Consorcia has no reason to wrongfully implicate BALLENAS. As the mother of the deceased victim, Consorcia would want nothing short of justice for her dead daughter. BALLENAS does not deny the fact that he went to see WILMA to fetch her that evening of March 20, 1987. In professing his innocence, BALLENAS merely denies the allegations of Consorcia that he took away WILMA at gunpoint and offers the defense that he merely talked to WILMA to convince her to meet with LACANIETA. Well-settled is the rule that denial is an intrinsically weak defense which must be buttressed by strong evidence of nonculpability to merit credence. 21 An affirmative testimony is far stronger than negative testimony, especially so when it comes from the mouth of a credible witness. 22 The fact that BALLENAS exposed himself to Consorcia all the more indicates his brazenness in abducting WILMA. The return of BALLENAS to Catmon after the death of WILMA cannot be also taken as a badge of his innocence. It is the credible and unwavering testimony of Consorcia that stands as solid proof of the guilt of BALLENAS.1wphi1.nt BALLENAS assails the testimony of Florencio on the ground that it "abounds in inconsistencies" 23 and is not credible. The alleged inconsistencies are however not clearly established.

Notably, Florencio unequivocally said that he saw LACANIETA, BALLENAS, SALVADOR and GAMAD rape and stab WILMA. We have no reason to doubt the credibility of Florencio in light of the doctrine that where there is no evidence to show any dubious reason or improper motive why a prosecution witness should testify falsely against the accused or implicate him in a serious offense, the testimony deserves full faith and credit. 24 The initial reluctance of Florencio to get involved in this case is understandable and does not cast doubt on his credibility as a witness. Whenever the issue boils down to credibility, we have always maintained that the credibility of witnesses and their testimonies is a matter best undertaken by the trial court, because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct and attitude. 25 Findings of the trial court on such matters are binding and conclusive on the appellate court, unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted. 26 We therefore see no cogent reason to reverse the judgment of the trial court convicting BALLENAS of the crime of forcible abduction with rape. The trial court ruled that there are two aggravating circumstances in this case, nighttime 27 and that the wrong done in the commission of the crime was deliberately augmented by causing other wrong not necessary for its commission 28 . We however digress from the finding of the trial court that the aggravating circumstances of nighttime and that the wrong done in the commission of the crime was deliberately augmented by causing other wrong not necessary for its commission are present in the case at bar. Based on the records, BALLENAS abducted WILMA around 7 o'clock in the evening of March 20, 1987 and that BALLENAS blew off the lighted kerosene lamp offered by WILMA to BALLENAS to light his cigarette. 29 However, Consorcia testified that there was some light coming from another kerosene lamp upstairs that "reflected (sic) the door" and that Consorcia also had a kerosene lamp with her that BALLENAS also put off. 30 In the case of People vs. Pallarco, 31 the scene of the crime was sufficiently illuminated by a

kerosene lamp, hence we ruled in that case that nocturnity cannot be appreciated if it can be shown that the place was adequately lighted. 32 The prosecution also failed to prove that nighttime was specially sought by the accused or taken advantage of by him or that nighttime facilitated the commission of the crime, circumstances which must be present before the aggravating circumstance of nighttime can be appreciated. We also do not agree with the trial court that the aggravating circumstance of cruelty attended the commission of the crime charged. The aggravating circumstance of cruelty is present when "the wrong done in the commission of the crime is deliberately augmented by causing other wrong not necessary for its commission". 33 There is cruelty when the culprit enjoys and delights in making his victim suffer slowly and gradually, causing him unnecessary physical pain in the consummation of the criminal act. 34 In People vs. Ferrer35 , the aggravating circumstance of cruelty was not appreciated in the absence of positive proof that the appellants inflicted the thirteen (13) wounds upon the victim in such a way that he was made to agonize before they rendered any of the blows which snuffed out his life. In this case, WILMA sustained ten (10) stab wounds, but these multiple wounds alone do not prove that the accused deliberately inflicted the injuries to prolong unnecessarily her physical suffering. Thus, the trial court improperly considered the aggravating circumstance of cruelty in the case at bar. What is present in this case is the aggravating circumstance of dwelling. Consorcia testified that her house has a ladder that leads to the main door; that BALLENAS was at the main door when he called WILMA; and that when WILMA refused to go with BALLENAS, it was there that BALLENAS forced WILMA to go with him. 36 Without a doubt, WILMA was abducted while she was still in her house. Thus, dwelling may be appreciated as an aggravating circumstance considering that it is not necessary that the accused should have entered the dwelling of the victim. 37 BALLENAS committed the crime of forcible abduction with rape punished under Article 335 of the Revised Penal Code in relation to Article 342 and 48 of the same Code. The two

elements of forcible abduction are (1) the taking of a woman against her will and (2) with lewd designs 38 . The crime of forcible abduction with rape is a complex crime that occurs when there is carnal knowledge with the abducted woman under the following circumstances: (1) by using force or intimidation; (2) when the woman is deprived of reason or otherwise unconscious; and (3) when the woman is under twelve years of age or is demented. 39 BALLENAS committed the crime of forcible abduction with rape on March 20, 1987, before the passage of Republic Act 7659 or the Heinous Crimes Law that took effect on December 31, 1993. At the time that BALLENAS committed the crime of forcible abduction with rape, the penalty then applicable was reclusion perpetua to death. The use by BALLENAS of a firearm in committing the crime, a fact duly alleged in the information and proven in court, should have warranted the imposition of the death penalty. However, since the crime took place prior to the implementation of RA 7659, the trial court correctfully ruled that the penalty that can be imposed on BALLENAS is reclusion perpetua. Hence, despite the presence of the aggravating circumstance of dwelling, the penalty herein of reclusion perpetua would not be affected. Under Article 63 of the Revised Penal Code, the penalty of reclusion perpetua should be applied regardless of any mitigating or aggravating circumstance that may have attended the commission of a crime. 40 This Court is however constrained to disallow the amount of P30,000.00 for the burial expenses incurred by Consorcia. We can only give credit for actual damages such as burial expenses if there are receipts that can support the claim. 41 The records in the case at bench do not substantiate the P30,000.00 burial expenses sought by Consorcia, except for her lone assertion. The P50,000.00 indemnity awarded by the trial court must be modified. Instead of the sum of P50,000.00 as indemnity, we award P75,000.00 as civil indemnity considering that the crime was committed with the use of a weapon as alleged in the information and proven in court. In consonance with jurisprudence, the increase of the civil indemnity to P75,000.00 is justified if the crime was committed under

circumstances that justify the imposition of the death penalty. 42 In People vs. Baago43 , the accused committed the crime of rape with the use of a gun on October 15, 1993, before the passage of RA 7659. This Court was thus precluded from meting out the death penalty, but nevertheless the accused was ordered to pay civil indemnity in the amount of P75,000.00. 44 In spite of the death of the victim in this case, we cannot award the higher amount of P100,000.00, the civil indemnity awarded in cases of rape with homicide. 45 The information in the case at bar is merely for forcible abduction with rape and not for rape with homicide. Moral damages in the amount of P50,000.00 are also hereby granted to the heirs of the victim. The award of moral damages may be made to the heirs of the victim in a criminal proceeding without the need for pleading or proof of the basis thereof. The fact that they suffered the trauma of mental or physical and psychological sufferings which constitute the bases for moral damages under the Civil Code are too obvious to still require recital thereof at trial. 46 Here, Consorcia testified as to the inconsolable loss that she felt when her only daughter was abducted, ravished and killed. 47 Exemplary damages may be awarded in criminal cases as part of the civil liability if the crime was committed with one or more aggravating circumstances. 48 Since dwelling is appreciated in this case as an aggravating circumstance under Article 14 (6) of the Revised Penal Code, the award of P20,000.00 as exemplary damages is therefore in order.1wphi1 WHEREFORE, the decision of the Regional Trial Court, Branch 12, San Jose, antique is AFFIRMED with the MODIFICATION that the accused-appellant Jerry Ballenas alias Marlon Marquez is ordered to pay the heirs of the victim in the amount of P75,000.00 as civil indemnity, P50,000.00 as moral damages and P20,000.00 as exemplary damages. The award of actual damages of P30,000.00 is deleted.1wphi1.nt

SO ORDERED. Melo, Panganiban and Purisima, JJ., concur. Vitug, J., abroad, on official business.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

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.

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. NA6575-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: 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 OFARRESTO 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 accidentallywounded 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 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 accidentallywounded 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. 11In People vs. Bocar, supra., We ruled: Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case was dismissed or otherwise terminated without the express consent of the accused. Moreover, he is charged for two separate offenses under the Revised Penal Code. In People vs. Doriquez, 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 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 sub-machine gun which caused public panic among the people present and physical injuries to one, informations for physical injuries through reckless imprudence and for serious public disturbance were filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss the second on the ground of double jeopardy. We ruled: The protection against double jeopardy is only for the same offense. A simple act may be an offense against two different provisions of law and if one provision requires proof of an additional fact which the other does not, an acquittal or conviction under one does not bar prosecution under the other. Since the informations were for separate offenses the first against a person and the second against public peace and order 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. 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.